Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269

Court of Queen ’ s Bench of Alberta Citation: Suncor Energy Inc v Unifor Local 707A, 2016 ABQB 269 Date: 20160518 Docket: 1401 03831 Registry: Calgary Between: Suncor Energy Inc. Applicant - and - Unifor Local 707A Respondent - and - Mining Association of Canada and Enform Canada Intervener _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ I. Introduction [ 1 ] This is an application for judicial review of an arbitration concerning a grievance.

The grievance is focused on the decision by Suncor Energy Inc. (“ Suncor ”) to institute a random drug and alcohol testing policy. Unifor Local 707A (“ Unifor ”) alleges that the proposed policy is contrary to Articles 1.01 and 4.01 of the Collective Agreement, to the common law and to applicable legislation. [ 2 ] The random testing is proposed to occur in the context of a dangerous workplace.

Underlying this random testing issue is an inherent tension between privacy and safety. [ 3 ] While privacy and safety are important and sensitive issues, it is generally not the task of a reviewing court to reassess the elements and substitute its own view. Rather, it is the task of such a court to determine whether the decision of an arbitration board was appropriate in the circumstances. II. Background Facts [ 4 ] Suncor is the Applicant.

It has operations in the Athabasca oil sands (the “ Oil Sands Operations ”) in the Regional Municipality of Wood Buffalo (“ Wood Buffalo Municipality ”). [ 5 ] The Oil Sands Operations are carried on in two locations. The first is a base plant (the “ Base Plant ”) approximately 30 km

north of Fort McMurray. The second is in situ operations at McKay River and Firebag, which are approximately 120 km north of Fort McMurray. [ 6 ] The Oil Sands Operations are carried on twenty-four hours a day, every day, all year round. Most Suncor employees work twelve hour shifts, with three day shifts followed by three night shifts. That sequence is then followed by six days off. [ 7 ] At any time, there can be almost 10,000 workers operating within the geographical area covered by the Oil Sands Operations. As mentioned above, Suncor and Unifor are parties to a Collective Agreement.

Of those 10,000 workers, 3,383 are represented by Unifor. [ 8 ] Suncor also employs 2,963 non-union employees. The remaining workers are employed by contractors. At any given time, there can be up to 3,400 contractors’ employees working within the Oil Sands Operations. [ 9 ] It is common ground that the Oil Sands Operations are, by their nature, dangerous.

There are many hazards at the sites of the Oil Sands Operations, including heavy equipment, high voltage power lines, chemicals, radiation sources, high temperature steam, explosives, high pressure piping and high temperature, flammable liquids and gases. [ 10 ] Some of the largest and most complex mining and industrial equipment in the world is used at these sites. The equipment includes heavy haul trucks, weighing in excess of 400 tons, and cable and hydraulic shovels, standing 21 metres tall. [ 11 ] Much of the Base Plant is contained within a blast zone.

At any particular time, thousands of workers may be working within the Base Plant. Further, the Oil Sands Operations are carried on close to communities and environmentally sensitive areas. [ 12 ] For many years, Suncor has been concerned about safety hazards posed by alcohol and drugs use by individuals within the workplace.

It has adopted various measures to address this concern, including the following: • employee education and training; • supervisor training; • post-incident, reasonable cause, return to work and follow-up drug and alcohol testing; • an Employee and Family Assistance Program; • treatment for employees with dependencies; • a Rapid Site Access Program for contractors’ employees; • a Drug Interdiction Procedure to detect drugs and alcohol at Suncor-owned accommodation facilities; • an Alcohol Free Lodge Policy; and • an extension of the Drug Interdiction Procedure that involves the use of sniffer dogs within Suncor’s operating footprint. [ 13 ] On June 20, 2012, Suncor announced that it was introducing additional measures.

These measures included a Canada-wide harmonized alcohol and drug policy, and supporting standards. [ 14 ] In addition, a random testing standard (the “ Random Testing Standard ”) was announced on that date, applicable only to the Oil Sands Operations in the Wood Buffalo Municipality. The Random Testing Standard provided for random drug and alcohol testing for employees in safety-sensitive positions. [ 15 ] On July 19, 2012, Unifor grieved Suncor’s implementation of the Random Testing Standard.

No other aspect of the additional alcohol and drug measures implemented in 2012 was grieved. [ 16 ] The extent of a problem with alcohol and drugs at the Oil Sands Operations is a matter of considerable debate. Suncor states that its evidence “demonstrates a pervasive problem that is unparalleled in any case in Canada”. In contrast, Unifor describes the evidence advanced by Suncor as “unparticularized and unrefined”. Amongst other issues, Unifor criticized the evidence because it made no distinction among union employees, non-union employees and contractors’ employees. III.

The Arbitration [ 17 ] The arbitration was conducted over the course of 23 days in 2013 before an arbitration panel consisting of three individuals. The arbitration was lengthy, technical and complex. Suncor called 12 witnesses, including three experts. Unifor called 7 witnesses, including one expert. [ 18 ] Ultimately, two of the arbitrators (the “ Majority ”) found in favour of Unifor. One arbitrator (the “ Dissent ”) found in favour of Suncor.

See Unifor, Local 707A v Suncor Energy Inc Oil Sands (Random Testing Grievance) , [2014] 242 LAC (4 th ) 1 (Hodges) . [ 19 ] Both the Majority and the Dissent referred to the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd , 2013 SCC 34 , 2 SCR 458 (“ Irving ”). The Irving decision was issued during the arbitration. [ 20 ] Both sides in this arbitration accepted the finding by Supreme Court of Canada that a dangerous workplace does not

automatically justify random testing. Rather, based on Irving and on Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co(1965), (ON LA), 16 LAC 73 (“KVP”), it is clear that a balancing of interests is required. That balancing requires adetermination of whether the rule sought to be imposed by the employer is proportionate to the concern it seeks to address. [21] Where the Majority and the Dissent differ is in their approach to, and conclusion on, that balancing of interests.

A review ofthe respective decisions by the Majority and by the Dissent (the “Majority Decision” and the “Dissent Decision”, respectively) isappropriate for purposes of framing the issue under judicial review. A. Majority Decision [22] The Majority considered alcohol and drug testing separately. They asserted that “...random alcohol testing and random drugtesting have not run on parallel paths in the jurisprudence”: Majority Decision, para 218. 1.

Alcohol Testing [23] With respect to alcohol testing, the Majority noted that the Irving board had found breathalyzer testing “effects a significantinroad” on privacy: Majority Decision, para 227. The Majority also noted that the Supreme Court had found that conclusion“unassailable”.

The Court in Irving stated the following at para 50: Early in the life of the Canadian Charter of Rights and Freedoms, this Court recognized that “the use of a person’s body without hisconsent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity” ... itnotably drew no distinction between drug and alcohol testing by urine, blood or breath sample, concluding that the “seizure of bodilysamples is highly intrusive and, as this Court has often reaffirmed, it is subject to stringent standards and safeguards to meetconstitutional requirements”. [24] The Majority stated at para 236 that the Supreme Court in Irving upheld the decision of the board in that arbitration,“including the need to demonstrate a ‘significant’ or ‘serious’ problem, and its requirement of a causal connection to the accident, injuryand near miss history at the plant – as reasonable” (underlining in Majority Decision).

The Majority stated as follows at para 248: In upholding the [Irving] Board’s decision as reasonable, the majority of the Supreme Court of Canada noted that the employer had notestablished a causal connection between the positive test results which the employer offered in that case and the safety record in theplant.

As a result, in our view, in order to establish that its proposed policy of random testing serves a legitimate business interest inimproving safety, the Employer must establish such a connection. [Underlining in Majority Decision] [25] The Majority acknowledged that the Supreme Court gave little guidance as to what would be required to establish a “generalproblem in the workplace” or what would constitute “legitimate safety concerns”: Majority Decision, para 239.

In particular, they notedthat while Irving gives some indication of what is not sufficient evidence, the Supreme Court did not provide a threshold for thedetermination of what is sufficient. [26] Nevertheless, the Majority was not persuaded that Suncor met the necessary threshold in this grievance arbitration. Theynoted that the evidence showed “a declining ‘for cause’ testing experience”: Majority Decision, para 250.

That is, the percentage ofpositives among tests administered “for cause” had decreased from 2009 to 2012. [27] The Majority also pointed out that while Suncor had provided evidence of 2,276 alcohol and drug “security incidents”, theevidence did not indicate whether those incidents involved Unifor members, other Suncor employees or contractor employees: MajorityDecision, para 254.

Further, the Majority was critical of Suncor because the incidents were not broken down according to whether theemployees involved were in safety-sensitive positions, were junior or senior employees, were located at the Base Plant or at Firebag, andso on. [28] The Majority rejected Suncor’s argument that its workforce is “integrated” with union, non-union and contractor employeesworking together such that the actions of each affect all the others.

The Majority noted that this evidence was absent in Irving as well,stating at para 259 that “[i]t does not appear that an argument was made in that case of what makes up the “workforce” in that decision,but the Board did not appear to have accepted evidence of the workforce as an integrated whole in making its determination on the lackof a causal connection” (underlining in Majority Decision). [29] The Majority took the position that they could consider only evidence specific to the bargaining unit, thereby excluding thenon-union employees of Suncor and the contractors’ employees working in the Oil Sands Operations.

In this regard, the Majority statedthe following at paras 264-5: As our jurisdiction derives from the collective agreement, and extends to the Employer and the bargaining unit members only, and as theimpact on privacy rights will be felt by this bargaining unit by virtue of our decision and is binding only on them, it makes logical sensethat this Board consider the cost/benefit analysis as it relates to this bargaining unit, and not its impact vis-à-vis the other two thirds ofworkers who are also present at the Oil Sands Operations.

In our view, in weighing the “gain” to be achieved to this Employer byconsidering other arrangements the Employer may or may not have with other groups of employees or contractors, the Board would beexceeding its jurisdiction. This makes logical as well as labour relations sense.

Taken to its logical conclusion, if in fact sucharrangements could dictate the results of a proportionality assessment, that term would have no meaning: a group of employees couldhave their privacy invaded whether or not they pose any sufficient risk to an employer themselves – in order to gain access to requirerandom testing of another group of employees outside the four corners of the collective agreement.

In this Board’s opinion, it must be the risk that this particular group poses – and therefore the gain from testing this particular group – that frames the inquiry. In the end, we find our jurisdiction is simply not broad enough to reach the end the Employer argues.

We cannot agree that evidence of gains which do not relate to this bargaining unit are relevant to a determination of whether members of this bargaining unit should be subject to what the Supreme Court of Canada has determined are highly intrusive random tests on their bodily fluids. [Underlining in Majority Decision] [ 30 ] The Majority concluded that “...the evidence does not demonstrate a culture at the Oil Sands Operations where the consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management’s practices or inaction”: Majority Decision, para 272. 2.

Drug Testing [ 31 ] Turning to drug testing, the Majority stated that the inability of urinalysis to demonstrate current impairment results in a different proportionality assessment: Majority Decision, para 275. The Majority further stated the following at paras 286 and 312: Unlike the jurisprudence relating to testing by breathalyzer, the jurisprudence relating to testing for drugs requires an assessment of the effectiveness of the testing methodology in meeting legitimate safety interests of the Employer...

If the methodology does not do so, the balance cannot tip in the Employer’s favour on a proportionality assessment. ... As we have discussed, urinalysis does not demonstrate current impairment. It does indicate use, but not the quality, quantity or time of use. Given this evidentiary limitation, evidence of positive tests, without more, does not allow us to conclude that drug use by Suncor employees in the bargaining unit poses a safety risk of such a magnitude that would justify the imposition of random testing for safety sensitive positions.

We find that the evidence tendered with respect to drug and alcohol security incidents does not demonstrate a serious drug issue among employees in this bargaining unit. Additionally, although the Employer has a sophisticated health and safety system, it did not present this Board with information that would link accident, injury and near miss incidents to drug use or abuse. On balance, we do not find random drug testing as proposed by the Employer to be a reasonable policy. [ 32 ] Further, the Majority stated at para 306 that “[t]he ability to adulterate a test is a further failing of urinalysis”.

The Majority asserted at para 339 that “[e]vidence was given that oral fluid testing was available, was able to determine present impairment, and had the added advantage of being more difficult to adulterate or ‘cheat’ than urine testing”. They acknowledged that “the taking of any bodily fluid is invasive”, but asserted that “oral fluid is closely aligned to the long accepted breathalyzer”.

They stated at para 332 that “[b]y using urinalysis as the testing method, when other, more advanced methods exist and can determine present impairment, this Employer is in fact seeking to regulate the personal lifestyle and moral choices of its employees, on their own time”. [ 33 ] While only random alcohol testing, not random drug testing, was at issue before the Supreme Court of Canada in Irving , the Court did refer at para 34 to the following comments by the arbitrator in Re Imperial Oil Ltd and CEP, Local 900 (2006), 157 LAC (4 th ) 225 (“ Nanticoke ”) : It may well be that the balancing of interests approach ... would allow for general random, unannounced drug testing in some extreme circumstances.

If, for example, an employer could marshal evidence which compellingly demonstrates an out-of-control drug culture taking hold in a safety sensitive workplace, such a measure might well be shown to be necessary for a time to ensure workplace safety. That might well constitute a form of “for cause” justification. [ 34 ] The Majority, however, stated that the majority of the Supreme Court had quoted, but not applied this exception.

In addition, the Majority stated at para 320 that the arbitrator in Nanticoke had posited this exception in respect of a time-limited policy: He did not contemplate – and the Supreme Court of Canada did not endorse – a policy that would have no time restrictions.

In our view such a policy would also require evidence which serves to allow a Board to differentiate between various aspects of the workforce in this type of workplace which spans several worksites and types of living arrangements (those living in camps versus those living in Fort McMurray, for example), and further to differentiate between the workforce on the basis of longevity of employment, such that the Policy is targeted as narrowly as possible, at the offenders.

In view of the rapidly expanding workforce in Fort McMurray, it could well be that it is the junior employees, who have not yet been integrated fully into Suncor’s safety work culture – that are in fact the greatest offenders. Unfortunately, the “New Hire” evidence in Exhibit 63 did not allow the level of analysis that would be required to make that determination. [ 35 ] The Majority rejected Suncor’s argument that an out-of-control culture existed at the Oil Sands Operations.

First, the Majority noted at para 304 that “[t]he difficulty for the Employer with respect to its paraphernalia and drug find evidence is that the majority of it cannot be attributed to any particular type of employee”.

Second, the Majority stated at para 309 that “...without evidence of some connection between drug use at this workplace and the accident and near miss history in this workplace and this group of Unionized Employees, an arbitration board cannot determine that random drug testing of these employees is a reasonable response to the risk they may pose in the workplace”. [ 36 ] The Majority held that the Random Testing Standard did not pass the KVP test. The KVP test provides that any rule or policy introduced unilaterally by an employer must be both reasonable and consistent with the collective agreement.

That test has been used by courts and arbitrators in the application of the balancing of interests approach to determine whether the policy in question has appropriately considered the interests of the employer and the employee. In this arbitration, the Majority upheld the grievance, stating at para 336:

In

summary, at its very foundation, the random drug testing policy as explained to employees is unreasonable, lacks clarity and is not unequivocal, as required by K.V.P., supra . The inconsistencies and contradictions within the policy and training materials themselves are significant. In the absence of compelling evidence that urinalysis can detect impairment and not just “recent use”, we do not find that the Employer’s business interest which is served by random testing is sufficient to over-ride an employee’s right to privacy with respect to his or her bodily fluids. B.

The Dissent [ 37 ] In contrast to the Majority Decision, the Dissent would have dismissed the grievance and found that the implementation of the Random Testing Standard was a reasonable exercise of Suncor’s management rights under the Collective Agreement. The Dissent was of the view that Suncor had demonstrated a “...profound and ongoing workplace problem with alcohol and drugs” at the Oil Sands Operations: Dissent Decision, para 2. [ 38 ] The Dissent took issue with the Majority Decision in a number of respects.

In particular, the Dissent criticized the Majority’s approach in respect of the evidence before it , and stated at para 13: In allowing the Grievance, the Majority failed to consider material and relevant facts and was highly selective in its review of the evidence. The Majority also improperly considered evidence that was not before this Board. In addition, the Majority thoroughly reviewed the Union witnesses and expert in their examinations in chief but failed to review their cross-examination testimony.

Similarly, the Majority neglected to outline most of the Suncor witnesses’ examinations in chief, but focussed on their cross-examination testimony. [ 39 ] The Dissent stated that the Majority had misapplied Irving .

Specifically, the Dissent asserted that the Majority elevated the test from evidence of a “general problem” with alcohol and drugs in the “workplace” to extreme evidence of a “bargaining unit” problem with alcohol and drugs, as well as a causal link between alcohol and drugs and safety incidents: Dissent Decision, paras 29 and 63. [ 40 ] In the Dissent’s view, Suncor’s evidence was compelling and clearly met the Irving test of a “general problem” with alcohol and drugs “in the workplace”: Dissent Decision, para 123.

He also found that Suncor had provided evidence demonstrating a clear causal link between alcohol and drugs, on one hand, and safety risks, on the other. [ 41 ] The Dissent stated at para 153 that, even if the Majority were correct in their view that a “bargaining unit” problem with alcohol and drugs was required, there was evidence of just such a problem.

In any event, the Dissent was of the view that the Majority was wrong to find that their jurisdiction was limited to hearing evidence regarding Unifor employees. [ 42 ] Concerning this particular question, the Dissent noted that the Supreme Court referred in Irving to a “general workplace” problem, not to a bargaining unit problem.

In his view, workplace alcohol and drug use affects all Suncor employees and, therefore, the entire “workplace” must be considered: Dissent Decision, para 161. [ 43 ] The Dissent asserted that the “public interest” in this case is significant and found at para 176 that the Majority had failed to consider the compelling public interest at stake in this matter. [ 44 ] The Dissent believed that the Majority exceeded their jurisdiction by commenting on the validity of urinalysis as a testing method.

In his view, that issue was not before the Board. [ 45 ] The Court also notes that the Dissent stated at para 208 that the Supreme Court in Irving referred to evidence demonstrating a general problem in the workplace, and not to evidence demonstrating impairment. [ 46 ] The Dissent also took issue with the Majority’s finding that safety concerns with respect to alcohol and drugs could be addressed using less intrusive measures.

In particular, he noted at para 232 that Unifor had not provided the Board with evidence of effective alternative measures. [ 47 ] The Dissent concluded that the Majority had erred in finding that Suncor had not met the test set out in Irving . He found as follows at para 242: Suncor has overwhelmingly demonstrated evidence of a serious problem with alcohol and drug use in the workplace and an enhanced safety risk. Suncor has addressed the ongoing safety concerns with incremental measures over the last two decades. Further incremental steps are necessary. There are no less intrusive measures.

Failure to implement the Random Testing Standard could result in potentially serious injuries, fatalities and potential environmental catastrophe. IV. Analysis A. What is the Standard of Review in this Application? [ 48 ] As always on an application for judicial review, the starting point is a determination of the appropriate standard of review. In this case, the parties are not entirely ad idem on this issue. [ 49 ] Suncor stated the following (Suncor Brief at paras 217 and 223, citations omitted): Labour arbitration decisions are generally subject to review on a standard of reasonableness.

However, where legal errors go to issues of jurisdiction and matters of public importance, those errors are reviewable on a standard of correctness.

... As will be discussed below, the Majority made a number of legal and jurisdictional errors in the Award that are reviewable on a standard of correctness. Further, the decision-making process lacked justification, transparency and intelligibility. The decision as a whole does not fall within a range of possible, acceptable outcomes that are defensible in respect of facts and law. [ 50 ] In contrast, Unifor asserted that the appropriate standard is reasonableness.

It stated the following (Unifor Brief at paras 48 and 54, citations omitted): Suncor intermittently acknowledges the reasonableness standard of review applies to the Board’s decision on the merits. Yet, in repeatedly referring to the Board’s “errors”, citing the dissent and rearguing its case, Suncor invites this Court to apply a correctness standard. Because of this, the reasons for the application of the reasonableness standard, and the nature of that standard, are reviewed below. ...

Suncor argues that the correctness standard of review applies to the Board’s decision on the scope of the grievance (Suncor Brief, paras 223-224). However, while the Supreme Court has held that correctness applies to true jurisdictional questions narrowly defined, the Board’s decision regarding the scope of the grievance is not such a question. Rather, whether a labour arbitration board is determining the scope of a grievance, or the related question of whether a grievance is arbitral, the reasonableness standard of review applies.

In answering such questions, a Board is acting within the core of its mandate by “interpreting a collective agreement and general principles of labour law and determining what the parties to the collective agreement intended”... . Moreover, the parties’ Collective Agreement gave the Board jurisdiction over a grievance, defined as a dispute “concerning the

interpretation, application, claim or breach or violation of this Agreement” ... . [ 51 ] The framework for determining the standard of review was outlined by Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 , 1 SCR 190. For purposes of this application, the guiding comments in Dunsmuir concerning the appropriate standard of review are at paras 54, 58 and 59 (citations omitted): Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity... .

Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context... . Adjudication in labour law remains a good example of the relevance of this approach. ... For example, correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867 ... .

Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution... . Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires . We mention true questions of vires to distance ourselves from the extended

definitions adopted before CUPE . It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction... . An example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485, 2004 SCC 19 . In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences ... . That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires .

These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [ 52 ] Given that this application is a grievance under a Collective Agreement, this Court is further guided by comments in Alberta Health Services v AUPE , 2013 ABCA 243 , 556 AR 102. In that case, the Alberta Court of Appeal spoke specifically to the standard of review and stated the following at paras 10 and 15: Arbitral awards under a collective agreement are, as a general rule, subject to the reasonableness standard of review... The

interpretation of the collective agreement is one of the matters that comes within the core expertise of the Board. As a result, it should be reviewed on the basis of reasonableness. [ 53 ] The argument advanced by Suncor is that the grievance before the Board was limited to the Random Testing Standard.

That being the case, Suncor asserted that the Board erred by expanding the scope of that grievance to include consideration of the propriety of the manner of testing, particularly urinalysis. [ 54 ] Suncor’s position is that the use of breathalyzer testing for alcohol and urinalysis for drugs has been in place since 2003, and was addressed in a 2003 arbitration.

That being the case, Suncor argued that those tests should not have been considered by this Board. [ 55 ] In contrast, Unifor asserts that the grievance at issue here does not refer to a particular standard and that the Random Testing Standard is not an independent document. Therefore, its position is that all aspects of the 2012 Policy were properly before the Board.

Further, it argues that the propriety of urinalysis was not determined in the 2003 arbitration and that the Board properly addressed the issues raised by the grievance. [ 56 ] In the view of the Court, it was within the purview of the Board to determine the scope of the grievance before it and to determine what the parties to the Collective Agreement intended . Like other aspects of the Decision of the Board, it is reviewable on the reasonableness standard.

[ 57 ] The Court agrees with Unifor that the reasonableness of the Random Testing Standard must be determined in context. This includes consideration of the methods by which such testing is to be carried out. [ 58 ] Given the above parameters, the Court finds that the decision of the Board falls to be reviewed on the reasonableness standard in its entirety. In coming to this conclusion, the Court is of the view that the Board was acting within the core of its mandate.

That mandate is defined by the Collective Agreement and the general principles of labour law. [ 59 ] In circumstances such as these, the Board is granted the authority to determine what the parties to the Collective Agreement intended. Indeed, the Collective Agreement gave jurisdiction to this Board over a grievance of precisely this nature, and this Court will not interfere with that jurisdiction unless there is a compelling need to do so. No such need exists in this case. B.

Was the Decision of the Majority Reasonable? [ 60 ] The Supreme Court of Canada described the reasonableness standard in the well-known passage from Dunsmuir at para 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 61 ] The Supreme Court of Canada further articulated the reasonableness standard as follows in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 59 : Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference.

Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” ... There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [Citation omitted.] [ 62 ] In cases both before and after Dunsmuir , the Supreme Court of Canada has cautioned that reviewing courts must not parse the tribunal decision too minutely. In Law Society of New Brunswick v Ryan , 2003 SCC 20 , the Court held at para 56: This does not mean that every element of the reasoning given must independently pass a test for reasonableness.

The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.

Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [ 63 ] In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , the Court held at para 14 that the task of the reviewing court is to undertake “...a more organic exercise – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The Supreme Court also cautioned in that case at para 17 that “[r]eviewing judges should pay ‘respectful attention’ to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.” [ 64 ] That said, the case law emanating from the Supreme Court of Canada makes it clear that applying the wrong legal test or misapplying the correct legal test will render the determination of a decision maker unreasonable: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 at para 39 .

This is so because the use of the wrong legal test or the improper application of the correct legal test goes to the foundation of the case. Like a foundation under a house, if the foundation of the case fails for one of these reasons, the administrative decision likely will not withstand the rigors of a judicial review. [ 65 ] The decision in Lake v Canada (Minister of Justice) , 2008 SCC 23 , 1 SCR 761, was released shortly after Dunsmuir .

While Lake dealt with an extradition, the comments of the Supreme Court of Canada in that case provide guidance in respect of the concept of reasonableness and whether that test is met in the context of a judicial review. The following comments at para 41 are particularly instructive: Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view.

Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. I agree with Laskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis.

If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. This approach does not minimize the protection afforded by the Charter . It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7 involve primarily fact-based balancing tests.

Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition. [ 66 ] The importance of the factors was subsequently emphasized by the Supreme Court of Canada in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) , 2012 SCC 37 , 2 SCR 345. The Supreme Court held as follows at para 37:

Because the Board’s finding of unfairness was based on what was, in my respectful view, a misapplication of the CCH factors, its outcome was rendered unreasonable. [ 67 ] Similarly, the Supreme Court held as follows in Saskatchewan (Human Rights Commission) v Whatcott , 2013 SCC 11 , 1 SCR 467 at para 194 : However, in my view, the Tribunal’s decision with respect to Flyers F and G was unreasonable. The Tribunal erred by failing to apply s. 14(1)(

b) in accordance with the Taylor directive (requiring feelings of an ardent and extreme nature so as to constitute hatred), or in accordance with the

interpretation of s. 14(1)(

b) prescribed in Bell (essentially reading out the words “ridicules, belittles or otherwise affronts the dignity of”). By failing to apply the proper legal test to the facts before it, the Tribunal’s determination that those flyers contravened s. 14(1)(

b) was unreasonable and cannot be upheld. [ 68 ] This Court must determine whether the Majority Decision was reasonable within the framework that the above cases provide. In considering this question, the Court focused on the three issues central to the Majority Decision and has given each careful consideration within the context of the reasonableness standard. First, did the Majority elevate to an unwarranted threshold the Irving test concerning the degree of evidence necessary to establish a problem?

Second, was it appropriate for the Majority to consider only evidence that demonstrated an alcohol and drug problem within the bargaining unit? An alternative way to pose this question is to ask whether the Majority should have considered the aggregate population of individuals who work within the Oil Sands Operations in the Wood Buffalo Municipality, including union employees, non-union employees and contractors’ employees.

Third, did the Majority fail to properly consider the evidence? [ 69 ] Turning first to the Irving threshold concerning the degree of evidence necessary to establish a workplace problem, the Court finds that the Majority misapplied the Irving test by imposing more stringent requirements than those contemplated by the Supreme Court of Canada. While the Supreme Court in Irving indicated that random testing might be justifiable if the employer could adduce evidence of a general problem with alcohol and drugs in the workplace, the Majority stated that it required evidence of a “significant” or “serious” problem.

In the view of this Court, that is an unwarranted elevation of the Irving test which was not endorsed by the Supreme Court. [ 70 ] The dissenting minority in Irving expressly rejected this threshold. They stated at para 104 that “[i]n none of the cases of which we are aware... have we seen language requiring evidence of a ‘significant’ or ‘serious’ problem. Rather, the standard has been that evidence of a problem”.

The dissent stated in the same paragraph that “[t]he difference between the two approaches is obviously a marked one and it cannot be ignored”. [ 71 ] The majority in Irving approached the issue from a different angle, emphasizing that a dangerous workplace does not give an employer an automatic right unilaterally to impose random testing. That boundary outlined by the majority in Irving is understood by this Court.

However, the flexibility inherent in Irving is also noted. [ 72 ] Concerning that inherent flexibility, the majority in Irving went on to indicate at para 45 that if there was a demonstrated problem with alcohol use in dangerous work places, random testing might be justified. Without defining the parameters, the majority went on to suggest that random testing was not beyond the realm of possibility in extreme circumstances.

Again, the definition of “extreme” was not defined by the majority in Irving . [ 73 ] As noted above, the Majority of the Board found that “...the evidence does not demonstrate a culture at the Oil Sands Operations where the consumption of alcohol is so pervasive as to be accepted by employees, where employees go together to drink openly and where such activity is either condoned or encouraged by management’s practices or inaction.” While this was the situation the board found in Greater Toronto Airports Authority v PSAC, Local 0004, [2007] LVI 3734-2, 2007 CarswellOnt 4531 (Ont Arb) , the Court finds that the balancing exercise referred to in Irving does not require so egregious a situation to justify random drug testing. [ 74 ] The Majority also stated that the Supreme Court in Irving upheld the decision of the arbitration board, including its requirement for a causal connection to the accident, injury and near-miss history at the plant.

Accordingly, the Majority held that Suncor was obliged to demonstrate such a connection to establish a legitimate business interest in proving safety. [ 75 ] Again, the Court does not read Irving as imposing such a threshold requirement. Indeed, the majority judgment in Irving makes no reference to such a causal connection. Rather, both the majority and the dissent in Irving referred to a balancing exercise to be undertaken on a case-by-case basis. The majority in Irving made the following comments at paras 4, 19 and 43.

A substantial body of arbitral jurisprudence has developed around the unilateral exercise of management rights in a safety context, resulting in a carefully calibrated “balancing of interests” proportionality approach. Under it, and built around the hallmark collective bargaining tenet that an employee can only be disciplined for reasonable cause, an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees’ privacy rights.

The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise. … But the reality is that the task of negotiating workplace conditions, both on the part of unions and management, as well as the arbitrators who interpret the resulting collective agreement, has historically — and successfully — included the delicate, case-by-case balancing required to preserve public safety concerns while protecting privacy.

Far from leaving the public at risk, protecting employees — who are on the front line of any danger — necessarily also protects the surrounding public. To suggest otherwise is a counter-intuitive dichotomy. … The board framed the question using the accepted KVP balancing of interests approach: Was the benefit to the employer from the random alcohol testing policy in this dangerous workplace proportional to the harm to employee privacy?

[ 76 ] The dissent in Irving made the following comments at para 82 in respect of the balancing exercise: Again, before this Court, neither party challenges the applicability or reasonableness of the balancing of interests test. They do, however, have divergent understandings as to what it actually requires in the circumstances of this case. [ 77 ] To reiterate the point made above, this Court finds that the Majority misconstrued the Irving test by applying more rigorous requirements than those articulated by the Supreme Court of Canada.

That elevation of the Irving test was unwarranted. [ 78 ] Turning to the second issue, the Majority asserted that it could only consider evidence demonstrating an alcohol and drug problem within the bargaining unit. While it is true that the arbitration decision is binding only upon members of the bargaining unit, it does not follow that the Board could take account only of evidence tied directly to that bargaining unit. [ 79 ] In the view of this Court, that is not what is required by Irving .

Such a narrow approach in respect of the workplace might be justified if there was evidence to suggest that alcohol and drug use within the bargaining unit differed in some meaningful way from that in the broader workforce. In this case, no such evidence was before the Board. [ 80 ] Contrary to the position advanced by Unifor, the Collective Agreement does not stipulate that the members of the bargaining unit are the only relevant population.

Indeed, the workplace in Irving encompassed all workers in the plant, including members of Unifor (formerly the Communications, Energy and Paperworkers Union), members of the International Brotherhood of Electrical Workers and non-union members. This is evidenced by the individuals tested and referred to by the board in Irving : [2009] 189 LAC (4 th ) 218 (NBLabAdj) (“ Irving Arbitration ”) at paragraph 112 . [ 81 ] The Court also notes that the board in Irving embraced the concept of safety within the workplace, and did so without regard to the status of the constituent individuals within that workplace.

This is evident in the following statement by the board in Irving : Irving Arbitration at paragraph 78 : Unilaterally promulgated employer rules have to deal with workplace subject matters. This one does. The Policy as a whole is concerned with promoting the operation of a safe workplace, a worthwhile and important goal. The disinhibiting and impairing effects of alcohol are notorious and have obvious negative implications for the safe carrying out of any employer’s work.

Rules on alcohol possession, use and presence in the workplace are common and prima facie , not to say self-evidently, are a proper subject matter for the exercise of the employer’s rule-making power. Since the union has not bargained a relevant limitation, it follows that the employer can make and enforce rules regarding alcohol in the workplace, but subject always to the KVP rules. [ 82 ] Ultimately, the Supreme Court of Canada did not articulate a test requiring specific evidence of a problem within the bargaining unit.

Instead, the Court directed that there be a determination as to whether there is a general “workplace” problem with alcohol and drugs: Irving at paras 37 and 40 . [ 83 ] In conclusion, the Court is of the view that the use of the term “workplace” rather than the phrase “bargaining unit” throughout the Irving decision and arbitration is meaningful.

Workplace safety is an aggregate concept, especially in a dangerous environment. [ 84 ] The focus on the workplace in general rather than more narrowly on members of the bargaining unit is also consistent with the obligation that employers have to ensure the safety of their entire worksite.

The Court is further comforted by the general workplace approach because it allows the dangerous environment to be considered in the context of the safety of everyone in that workplace. [ 85 ] As a final point on this matter, it is important to recall that the only “workplace” relevant to this case are the locations of the Oil Sands Operations in the Wood Buffalo Municipality. These are relatively small and well defined areas that are, by their very nature, dangerous. Further, the Random Testing Standard at issue in this case applies only to workers in safety-sensitive positions within those locations.

Therefore, considering the “workplace” in general does not, in the Court’s view, result in an overbroad analysis. [ 86 ] Turning to the third issue, did the Majority fail to properly consider the evidence? This raises a question of process, which has a substantive impact on a tribunal’s decision . [ 87 ] The failure of the Majority to discuss a relevant factor in depth, or at all, is not a basis, in and of itself, for this Court to find the Majority Decision unreasonable.

An omission is a material error only if it gives rise to the reasoned belief that the Majority ignored or misunderstood the evidence in a manner that affected its decision. Absent such reasoned belief, this Court cannot interfere: Housen para 39 . [ 88 ] After considering the evidence carefully, the Court finds that it has a reasoned belief that the Majority ignored or misunderstood the evidence in a manner that affected its decision. [ 89 ] An example of evidence that was effectively ignored are the “security incidents” that were recorded between September 3, 2004 and August 26, 2013.

The gross number of security incidents recorded during that period was 2,276. [ 90 ] The Majority was critical of the alcohol and drug “security incidents” for a number of reasons, including the assertion that the evidence did not indicate whether those incidents involved Unifor members, other Suncor employees or contractor employees. While the Majority acknowledged that there were a large number of security incidents, it then went on to parse the information by subjecting it to a flawed approach that narrowed the scope of the enquiry from the workplace focus to a bargaining unit focus.

Under this analytical approach, Unifor took the position that only 12 of the 2,276 security incidents could be directly attributed to bargaining unit employees. This Court has already found above that the Irving test applies to the general workplace and is not to be limited to the bargaining unit employees. [ 91 ] While some of the critiques by the Majority in respect of the security incidences had merit, many did not. The relevance of that “security incident” evidence was lost because it was taken out of context as a result of the overly narrow analytical approach applied

by the Majority. For example, the Majority ignored the fact that the camp at Firebag is within the security perimeter of the operating environment, and thereby eliminated the security incidents that had been identified within that camp.

While some of this security incident data was “unrefined”, the Court finds that the wholesale dismissal of this evidence gives rise to a reasoned belief that the Majority ignored or misunderstood that “security incident” evidence in a manner that affected its decision. [ 92 ] The Majority also commented that “it could well be” that junior employees are more likely to be at risk for alcohol and drug use affecting the workplace.

While the Majority acknowledged that the evidence before them did not permit them to draw this conclusion, the Court is concerned that such speculative possibilities affected their determination, detracting from the reasonable application of the Irving test. [ 93 ] In a similar vein, while this Court has found that it was reasonable for the Majority to consider the merits of urinalysis in the course of the necessary balancing exercise, it finds that some of their reasoning was internally inconsistent in this regard.

The Majority rejected random testing for both alcohol and drugs, notwithstanding their focus on the shortcomings of urinalysis. [ 94 ] The Majority referred to “other, more advanced methods” of drug testing. However, this Court’s review of the record indicates that Unifor did not provide the Board with any evidence of effective alternative measures.

Further, the Majority appeared to indicate that oral fluid testing was superior to urinalysis, being “closely aligned to the long accepted breathalyzer”, notwithstanding its rejection of random alcohol testing using that very method. [ 95 ] Finally, by focussing only on the bargaining unit, the Majority expressly excluded consideration of relevant evidence. The Majority ignored evidence pertaining to some two-thirds of the individuals working in the Oil Sands Operations.

Neglecting this evidence gives rise to a reasoned belief on the part of this Court that the Majority misunderstood the evidence in a manner that affected their decision. [ 96 ] The Court is conscious of the admonition of the Supreme Court of Canada in Ryan , Newfoundland Nurses and Irving to the effect that the review of arbitral decisions must be an organic exercise, and not a “treasure hunt” for error.

Nevertheless, taking that organic approach, the Court finds that the Majority’s “threshold” approach to Irving and its incorrect elevation of that threshold forecloses virtually any possibility of random testing, regardless of circumstances. While the Supreme Court was clear that random testing will be difficult to justify, the Majority’s approach runs counter to the statement at para 52 of Irving : This is not to say that an employer can never impose random testing in a dangerous workplace.

If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified. [ 97 ] The Court is of the view that the approach taken by the Majority falls into the trap identified by Rothstein and Moldaver JJ. in Irving . While Rothstein and Moldaver JJ. were in dissent, all the judges in Irving agreed that a case-by-case inquiry is needed.

Therefore, the Court is of the view that this comment from para 57 of the minority decision in Irving may be relied upon: In striking down the policy, we conclude that the board departed from an arbitral consensus that has attempted to strike a balance between competing interests in privacy and safety in the workplace. The board put its thumb on the scales and upset the careful balance established in the arbitral jurisprudence. In so doing, it came to an unreasonable decision. [ 98 ] Taking all of the foregoing into account, the Court concludes that the evidentiary analysis of the Majority was unreasonable.

Therefore, the decision of the Majority was also unreasonable. V. Remedy [ 99 ] As the Majority’s decision was unreasonable, the disposition of the arbitration cannot stand and is quashed. The normal result of this decision is that the matter must be sent back for rehearing. [ 100 ] In limited circumstances, a reviewing court may substitute its own view for the quashed arbitral decision: see, for example, Giguère v Chambre des notaires du Quèbec , 2004 SCC 1 , 1 SCR 3 and Telus Communications Inc v Telecommunications Workers’ Union , 2013 ABQB 355 , 62 Admin LR (5 th ) 253, aff’d 2014 ABCA 199 , 575 AR 325.

This, however, is appropriate only where the facts before the administrative decision maker permit of only one reasonable result and remitting the matter for re-arbitration would serve no useful purpose. In the view of this Court, that is not the case here. [ 101 ] Accordingly, the application for judicial review is granted, the arbitration decision is quashed and the matter is remitted for arbitration. To avoid any apprehension of bias, the matter should be considered by a fresh panel. [ 102 ] The parties may speak to costs within 60 days of the date of these Reasons.

Written submissions on costs may be made, but those submissions are not to exceed five pages. Heard on the 23 rd and 24 th days of October, 2014 . Dated at the City of Calgary, Alberta this 18 th day of May, 2016.

D.B. Nixon J.C.Q.B.A. Appearances: B.B. Johnston, Q.C. and A. Kosten Dentons Canada LLP for the Applicant J.R. Carpenter, M.L. Westgeest and V.A. Cosco Chivers Carpenter Lawyers for the Respondent P.A. Gall, Q.C. for the Intervener