Phillips v Westcan, 2020 ABQB 764

Court of Queen’s Bench of Alberta Citation: Phillips v Westcan, 2020 ABQB 764 Date: 20201210 Docket: 1903 06879 Registry: Edmonton Between: Randall Phillips Applicant - and - Westcan Bulk Transport Ltd. Respondent Corrected judgment: A corrigendum was issued on December 11, 2020; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Decision of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1. Overview

[1] Randall Phillips applies for a permanent injunction against his employer, Westcan Bulk Transport Ltd., prohibiting Westcanfrom randomly testing its employees for drugs and alcohol. To succeed in his application, among other things, Mr. Phillips mustestablish that he has an enforceable right not to be subject to random drug and alcohol testing: Muslim Counsel of Calgary v Mourra2018 ABQB 118 at 65. [2] This case turns on these issues: • Is it a term of Mr. Phillips’ contract of employment that Westcan would randomly test its employees, including Mr.

Phillips, fordrugs and alcohol? • If so, is that term of the contract enforceable? • If not, is Westcan entitled to impose random testing on Mr. Phillips? [3] Westcan filed five affidavits from four experts, totaling 305 pages. None of that evidence is relevant and necessary for thisapplication, so I have not considered it in my reasons. [4] Westcan started random drug and alcohol testing of employees in safety sensitive positions in 1999 or earlier and hascontinued random testing through to the present. During that period Mr. Phillips joined Westcan as an employee, left that employment,and returned.

He was subject to random testing during both periods of employment. I conclude that when he accepted his most recentoffer of employment from Westcan, in October 2015, both Mr. Phillips and Westcan understood and agreed that it was a condition of Mr.Phillips’ employment that Westcan would randomly test him for drugs and alcohol. [5] The enforceability of a contractual drug and alcohol testing regime does not turn on the reasonableness of that regime, as itwould if random testing were imposed unilaterally.

An employer and employee are free to agree to conditions of employment, providedthose conditions comply with employment standards, human rights and other legislation, which have not been raised by Mr. Phillips, andprovided those conditions of employment are not otherwise unconscionable. Random drug and alcohol testing is not an unconscionableterm in an employment agreement for a driver hauling dangerous goods over long distances, without supervision.

Consequently, Mr.Phillips is subject to random drug and alcohol testing which he agreed he would be subject to when he accepted employment withWestcan. [6] Even if Mr. Phillips’ employment were governed by a contract which did not expressly permit Westcan to conduct randomtesting, Westcan would be justified in unilaterally imposing random testing on its drivers, because of the enhanced safety risks ofWestcan’s business. [7] Mr. Phillips does not have an enforceable right to stop Westcan from randomly testing him for drugs and alcohol.Consequently, his application for an injunction is dismissed. 2.

Expert Evidence [8] Westcan filed affidavits of the following experts: • Dr. Melissa Snider-Adler, a physician specializing in addiction medicine • Dr. Leo Kadehjian, a toxicologist • Dr. Louis Francescutti, a physician with expertise in epidemiology and injury control • Carolyn Kirkwood, a chemist with experience in toxicology, serology and alcohol analysis [9] Each of these people is educated and experienced in one or more highly technical fields. They have each been qualified togive expert opinion evidence in court in the past.

I would not hesitate to qualify them in this case, if their evidence were relevant andnecessary for me to make my decision. It is not. It is well-known that drugs and alcohol can impair one’s ability to operate a motorvehicle, that their effects wear off over time and that their presence in blood, urine and breath decline over time. I would not requireexpert evidence to make those findings, if those facts were in issue. [10] The issues in this action are defined by Mr. Phillips’ Originating Application and Affidavit, particularly the

section of Mr.Phillips’ affidavit entitled “Objections to the Policy”. He does not take issue with the testing methods used by Westcan and he does nottake issue with the well-known dangers of operating machinery while impaired. Nothing in his pleadings makes it necessary for me todetermine the rate at which drugs and alcohol are absorbed and eliminated by a human body or whether so-called accidents are actuallyavoidable events.

Westcan chose to file affidavits from experts expressing opinions on those things, but before any of that becomesevidence for me to consider, it must be both relevant to and necessary: R v Mohan (SCC), [1994] 2 SCR 9 at para 17 ff. [11] The expert evidence submitted by Westcan is neither relevant nor necessary. I have not considered it in reaching my decision. 3. Employment Contract 3.1 policies [12] Westcan has been randomly testing its employees for drugs and alcohol since 1999 if not earlier. The January 1999 Drug &Alcohol Policy includes the following (Columbus affidavit, exhibit S):

All employees, independent contractors and their drivers, are required to read, understand, accept and comply with this policy as a condition of employment with the company. … Employees, independent contractors and their drivers, designated as safety sensitive will be subject to random and post accident/incident testing for alcohol and controlled substances. … The following employees are deemed safety sensitive: … c. all company drivers … Employees, independent contractors and their drivers, to be tested for reasonable suspicion of alcohol and controlled substance use, or randomly tested, shall only be tested when they report for duty or prior to being released from duty. … Employees, independent contractors or their drivers, shall not report for duty or be on duty with a blood alcohol content in excess of 0.00 percent. … Employees, independent contractors or their drivers, shall not consume alcohol within the previous 12 hours of reporting for duty or remain on duty while under the influence of alcohol … … If an employee or contractor refuses to sign a consent form or submit to an alcohol or controlled substance test, despite a direct request, the employee will be placed under suspension and sent home.

The employee will be subject to disciplinary action, up to and including dismissal. [ 13 ] Westcan revised its drug and alcohol policies several times after 1999.

In 2011 the policy included the following (Columbus affidavit, exhibit U): 6.5.1 Random testing will apply to positions deemed safety sensitive as described under 3.2. 6.5.2 All positions described under 3.2 will be chosen randomly within a 12-month cycle. 6.5.3 By continuing his/her employment with the company the employee accepts the terms of the drug and alcohol policy and authorizes the laboratory to provide the test results to the company or any person with legal authority to require the disclosure of the test results. 6.5.4 Further, the employee authorizes the medical review officer to provide the test results to ta substance abuse expert to whom the employee has been referred under the provisions of this policy. [ 14 ] The 2011 policy was in place when Mr.

Phillips commenced employment in December 2013.

The policy was revised slightly in 2014 to read as follows (Columbus affidavit, exhibit U): 6.5.1 Randorm testing will apply to positions deemed safety sensitive as described under 4.2. 6.5.2 All positions described under 4.2 will be placed in the random pool and may be drawn within a 12-month cycle. 6.5.3 By continuing his/her employment with the company the employee accepts the terms of the drug and alcohol policy and authorizes the laboratory to provide the test results to the company or any person with legal authority to require the disclosure of the test results. 6.5.4 Further, the employee authorizes the medical review officer to provide the test results to ta substance abuse expert to whom the employee has been referred under the provisions of this policy. [ 15 ] Mr.

Phillips left Westcan’s employ in the spring of 2015 and then returned in the fall of 2015. At that time the 2014 policy was in place. Westcan made further revisions to its policy in 2016, 2017, 2018 and 2019. None of those changes altered the basic provision that drivers are subject to random testing. 3.2 expectation agreement [ 16 ] Westcan’s application for employment procedure includes an expectation agreement, which each applicant is required to sign. The expectation agreement includes the following (Columbus affidavit, exhibit H):

KAG expects the following of ALL Company Drivers : … To help us achieve the highest level of safety, Drivers are expected to understand and abide by the transportation legislation and our policies and procedures including … drug and alcohol policy (including pre-employment, random, post-incident and for cause testing of drivers) … I have read and have had an opportunity to ask questions about the driver expectations set forth by KAG. I understand by signing this document that should I become a driver with KAG I will be held to these expectations. [ 17 ] (The Kenan Advantage Group acquired Westcan in 2013.

Some documents in evidence refer to “KAG”, which as applied to Mr. Phillips means Westcan.) [ 18 ] Although expectation agreements signed by Mr. Phillips are not in evidence, Westcan’s evidence is that all job applicants including Mr. Phillips are required to sign that document. 3.3 offers of employment [ 19 ] Westcan offered Mr. Phillips employment in December 2013 and again in October 2015. The offers were in the form of letters.

In each case the letters contained the following: This offer is made subject to your compliance with: • our corporate policies … As your position is deemed safety sensitive … [ 20 ] Mr. Phillips signed the December 2013 and October 2015 letters offering him employment (Columbus affidavit, exhibits V and W). 3.4 operations training program [ 21 ] Mr. Phillips participated in Westcan’s operations training program twice: once following his acceptance of the December 2013 offer of employment and a second time following his acceptance of the October 2015 offer of employment.

In each case the operations training program included an orientation in which the new employees were told (Columbus affidavit, exhibit X): Random drug and alcohol testing will apply to positions deems safety sensitive. [ 22 ] Mr. Phillips completed a policies and procedures examination as part of the operations training program in 2013 and 2015 (Columbus affidavit, exhibits CC and DD). In each case the examination included this question: Safety sensitive employees may be subject to alcohol and/or controlled substance testing:

a) for reasonable suspicion

b) random testing

c) post-accident or incident

d) all of the above [ 23 ] Mr. Phillips answered “

d) all of the above” on both examinations and he received a mark of 100% in each case. 3.5 conclusion: Phillips agreed to random testing [ 24 ] When Mr. Phillips accepted Westcan’s offer of employment in October 2015, he expressly agreed to be bound by Westcan’s policies and he knew those policies included random drug and alcohol testing for drivers, because he had been told that in the expectation agreement he signed in 2015, and because he had previously participated in the operations training program in 2013 during which he correctly answered a question about drug and alcohol testing.

For those reasons I conclude that it was a term of the employment contract between Westcan and Mr. Phillips that he would be subject to random testing for drugs and alcohol. 4. Enforceability [ 25 ] Mr. Phillips submits that random drug and alcohol testing is prohibited as a general rule, citing Communications, Energy and Paperworks Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. 2013 SCC 34 . Based on Irving , Mr.

Phillips submits that random testing will only be justified if there is “evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace” ( Irving at para 31).

[26] Westcan submits that the relevant test comes from Entrop v. Imperial Oil Ltd. (ON CA), 137 OAC 15 atpara. 75, quoting British Columbia (Public Service Employee Relations Commission) v.

BCGEU (1999) (SCC), 176 DLR(4th) 1 (SCC) at pp. 24 – 25: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment ofthat legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that thestandard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing thecharacteristics of the claimant without imposing undue hardship upon the employer. [27] Irving was a judicial review of an arbitrator’s decision regarding random drug and alcohol testing unilaterally imposed in aunionized workplace. Entrop was a judicial review of a human rights board of inquiry decision regarding random drug and alcoholtesting unilaterally imposed in a non-union workplace.

Neither case addresses the enforceability of an express contractual provisionpermitting an employer to randomly test an employee for drugs and alcohol. Abella, J. in the opening paragraphs of the majority decisionin Irving expressly acknowledges that a random testing provision could be expressly included in a collective agreement throughnegotiation: Privacy and safety are highly sensitive and significant workplace interests. They are also occasionally in conflict. This is particularly thecase when the workplace is a dangerous one.

In a unionized workplace, these issues are usually dealt with in the course of collective bargaining.

If an employer, however, decides notto negotiate safety measures before implementing them, and if those measures have disciplinary consequences for employees, theemployer must bring itself within the scope of the management rights clause of the collective agreement. [28] In Irving the issue before the arbitrator was whether the management rights clause in the collective agreement was broadenough to permit the employer to impose random testing, and in Entrop the issue before the board of inquiry was whether randomtesting was a bona fide occupational requirement justifying a practice which discriminated against persons suffering from drug or alcoholaddiction.

Both cases address circumstances where the employer unilaterally imposed random testing. Neither case addresses an expresscontractual provision permitting the employer to randomly test the employee, which is the case before me. [29] Irving and Entrop are both cases where an administrative tribunal had the authority to grant relief pursuant to a collectiveagreement or human rights legislation. Neither Mr. Phillips nor Westcan has explained how those cases apply to an employee with anindividual employment contract applying for an injunction against his employer. [30] Mr.

Phillips has not raised a breach of human rights legislation, an employment standards code or any other legislatedrestriction on the freedom of employers and employees to contract as they see fit. The general common law rule is that an employer andemployee are bound by the terms of their contract: There is nothing ambiguous in this contract. Its plain terms must be given effect to regardless of any consideration of harshness orunfairness or of supposed intentions of the parties other than those expressed therein. Confederation Life Assn v Berry (SCC), [1927] SCR 595 at para. 3 [31] In oral argument I asked Mr.

Phillips’ counsel whether he was submitting that a random testing provision in an employmentcontract would be unenforceable due to unconscionability. He said he was. [32] Judicial intervention may be warranted in the case of an unconscionable employment contract: The test for unconscionability is strict. It is usually founded in some misconduct or sharp practice at the formation of the contract, oftenwhen there is an imbalance in bargaining power: Canadian Imperial Bank of Commerce v. Ohlson, 1997 ABCA 413 at paras. 18-24, 57Alta. L.R. (3d) 213, 209 A.R. 140 (Alta. C.A.). In Harry v.

Kreutziger (1978), (BC CA), 95 D.L.R. (3d) 231 at p. 241,9 B.C.L.R. 166 (B.C. C.A.) at p. 177 the doctrine was said to come down to the "single question of whether the transaction, seen as awhole, is sufficiently divergent from community standards of commercial morality that it should be rescinded". Styles v.

Alberta Investment Management Corp. 2017 ABCA 1, leave denied [2017] SCCA No. 76 [33] In my view, an express random drug and alcohol testing term in an employment contract for a truck driver hauling dangerousgoods in remote parts of Canada is not at all divergent from community standards of commercial morality. The particular circumstancesof Mr. Phillips’ work for Westcan which form the basis for my opinion, are set out in the next

section of these reasons. [34] I find that the random drug and alcohol testing provision in Mr. Phillips’ employment contract is enforceable. 5. Westcan’s Right to Unilaterally Impose Random Testing [35] Most of the parties’ submissions were focused on whether the circumstances of Mr. Phillips’ employment with Westcanjustify the imposition of random drug and alcohol testing, following either the Irving test or the Entrop test. Those tests apply where anemployer unilateral imposes random testing.

Those tests do not apply where an employer and employee have expressly agreed to randomtesting, which is the case here. [36] For the sake of completeness and providing the parties with a decision on the main issue they argued, I have considered

whether Westcan would be justified in unilaterally imposing a random drug and alcohol testing regime, if it did not have an express contractual agreement with Mr. Phillips which includes that provision. In that case, Westcan might have to meet the Irving test, the Entrop test, or some other test. The parties agree that the Irving test is the more difficult of the two tests for an employer to meet. In my view, even if the Irving test applied in this case, it would be met in the case of Westcan’s drivers, because of the work, the workplace and the workforce. 5.1 the work [ 37 ] Mr.

Phillips’ work as a driver involves operating a tractor trailer unit weighing approximately 63,500 kg on highways and other roads mostly in the northern part of Canada. The tractor trailer units operated by Westcan have at least two major pivot points and usually have 20 tire or wheel positions, which have specific configurations which must be correctly maintained.

In the words of Westcan’s Vice President, Health, Safety and Environment, Dan Columbus (affidavit, para. 3): The slightest moment of inattention or distraction by a worker can lead to injury or death of Westcan employees and the general public, and environmental damage. [ 38 ] Some of what Westcan hauls is hazardous, dangerous or explosive, such as propane, gasoline, hot liquid asphalt, anhydrous ammonia, molten sulphur and sulphuric acid. [ 39 ] Despite having an extensive safety program, Westcan has had a few serious incidents in recent years, which Mr. Columbus describes as follows (affidavit, para. 64): (

a) A single vehicle crash where the driver died and a significant volume of fuel leaked from trailers into a waterway; (

b) A hazardous chemical spilled from Westcan trucks onto a highway, and thousands of cars were damaged; (

c) A Westcan truck was involved in a collision with a passenger vehicle, and one of the occupants of the passenger vehicle died from injuries; (

d) A passenger vehicle committed suicide by driving head-on into a Westcan truck; and (

e) A passenger vehicle struck a Westcan truck at an intersection in a major city. After the incident, the Westcan driver tested positive for alcohol. If the driver was not impaired by alcohol, he may have been able to avoid the collision; [ 40 ] This evidence demonstrates the inherent danger in driving heavy trucks carrying dangerous goods over long distances, which is the work Westcan hired Mr.

Phillips to do. 5.2 the workplace [ 41 ] Westcan has terminals in Edmonton, Grande Prairie, Peace River, Prince George, and Yellowknife, among other places, but much of the work done by its drivers takes place a long way from any of those terminals. For example, Mr. Phillips frequently drove the 2,600 km route from Taylor, British Columbia to Inuvik, Northwest Territories.

Drivers may not return to a terminal for weeks or months, in which case they may have no direct contact with other Westcan employees, including supervisors, for extended periods. [ 42 ] Because of Westcan’s vast workplace, opportunities to observe indications of impairment, such as glassy eyes, slurred or incoherent speech, or difficulty walking are very limited. This makes reasonable suspicion testing virtually impossible.

Furthermore, post-incident testing is frequently impractical because by the time a Westcan tester can reach a remote site, any drugs or alcohol in a driver’s system will have at least partially dissipated through natural elimination from the body. For example, on March 2, 2015 around 7:00 pm, Mr. Phillips rolled his truck in a ditch near Fort McPherson, Northwest Territories. Westcan’s tester had to travel by air from Yellowknife to Inuvik and then by road from Inuvik to Fort McPherson.

The trip took more than 24 hours. 5.3 the workforce [ 43 ] Westcan has been doing random drug and alcohol testing, as well as post incident, reasonable cause and return to work testing, for many years. In the random testing done between 2014 and 2019, the rate of positive tests ranged from 0.44% to 1.79%, with the last three years being three of the four highest. [ 44 ] Westcan has also discovered physical evidence that its employees are using alcohol at work, examples of which are described by Mr. Columbus as follows (at paragraph 124 of his affidavit): (

a) a truck was returned from a driver, and was at a Westcan terminal for service and cleaning; A wash bay tech found a can of beer tucked behind the passenger seat; (

b) The driver of a contractor was the lead driver of a convoy. He was separated from the convoy, contrary to policy. During an interview, the driver admitted that he used cruise control for the trip and that he had beer in his truck. A search of the truck revealed 3 unopened cans of beer and 5 empty cans of beer; and (

c) a construction superintendent was cleaning out the pump-out location at the shop. As he was moving snow with an excavator, he found, in the snow, a plastic bottle (375ml) of hard liquor that was missing about 30ml. 5.4 Westcan meets the Irving test

[ 45 ] To summarize, Westcan’s work is inherently dangerous, its workplace is remote and not conducive to supervision and its workforce has a significant incidence of drug and alcohol use at work.

Westcan’s positive test rate of 1.79% on random testing in 2019, is comparable to 2.7% of employees reporting having near misses due to substance use in the past year in CEP Local 777 v Imperial Oil (May 27, 2000) Christian Member (Alta Arb) unreported, which was cited by the Supreme Court of Canada in Irving at para 39 as an example of a demonstrated general problem with alcohol use in a dangerous workplace. [ 46 ] Random testing may be justified if “it represents a proportionate response in light of both legitimate safety concerns and privacy interests”: Irving at para. 52.

Westcan has demonstrated enhanced safety risks, based on the significant rate of positive testing in random tests, physical evidence of alcohol use at work, a vast workplace and inherently dangerous work. Random testing is a proportionate response. If it applies, the Irving test is met. 6. Conclusion [ 47 ] Mr. Phillips agreed to random drug and alcohol testing when he accepted employment with Westcan. That provision is enforceable. Even if there were no such provision in Mr. Phillips’ employment contract, Westcan could impose random testing because of the dangerous, remote and unsupervised nature of Mr.

Phillips’ work, and the significant incidence of drug and alcohol use in Westcan’s workforce. Mr. Phillips has no enforceable right to stop Westcan from randomly testing him or anyone else. Consequently, he is not entitled to an injunction. [ 48 ] In addition to a permanent injunction, Mr. Phillips’ originating application seeks a declaration that his suspension or lock out from employment following his refusal to submit to random testing was without foundation and unreasonable, and compensation for his lost wages during the lock out and suspension. For the same reasons, set out above, that Mr.

Phillips is not entitled to an injunction, he is not entitled to a declaration or compensation. I dismiss his application in its entirety. [ 49 ] If the parties are not able to agree to costs, costs may be addressed through brief written submissions, following which I will issue a written decision on costs. The parties should notify me no later than January 31, 2021, if they are not able to agree on costs, following which I will set deadlines and page limits for written costs submissions. Heard on the 22 nd day of September, 2020. Dated at the City of Edmonton, Alberta this10 th day of December, 2020 . G.S.

Dunlop J.C.Q.B.A. Appearances: Wilson McCutchan Taylor Janis LLP for the Applicant Donald J. Wilson and Allison Murray Banerjee DLA Piper (Canada)LLP for the Respondent

_______________________________________________________ Corrigendum of the Decision of The Honourable Mr. Justice G.S. Dunlop _______________________________________________________ Mr. McCutchan’s name on page 11 was changed from McCutchen to McCutchan.