1. law, govt and politics

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights
(CEER) Newsletter – April, 2015
DRUG DETECTION DOGS FAIL SMELL TEST
By Kim G. Thorne and David S. Louie
In United Steelworkers Local 7552 v. Agrium Vanscoy Potash Operations (Grievance
16-10, Random Drug Searches/Interviews), [2015] S.L.A.A. No. 1 (Norman), a
Saskatchewan employer’s practice of periodically deploying drug detection dogs to
screen individuals entering its safety-sensitive worksite was held to be in breach of the
collective agreement.
Impugned process
The employer, Agrium Vanscoy Potash Operations, utilized a security service with drug
sniffing dogs to screen persons entering its mine site. This occurred at the site
guardhouse on randomly selected days. This mandatory entry requirement included
follow-up interviews of individuals who triggered an “alert” from one of the dogs. A
second sniff test of the subject and his or her possessions would then take place. If
illegal substances were found or the individual gave other reasonable cause, a manager
could advise that a urinalysis test be conducted at an offsite lab for the detection of drug
metabolites in the individual’s system. The union grieved this “search/interview” process
as, in its view, the process amounted to an unjustifiable violation of the fundamental
employee right to privacy.
Analysis
Arbitrator Ken Norman accepted that the mine is a safety-sensitive workplace and began
his analysis by drawing a distinction between drug testing cases where bodily
substances are seized and tested and the present case where a “search/interview”
process was at issue. He also noted that unilateral random deployment of drug
detection dogs to screen employees entering a safety-sensitive workplace had never
previously been considered under the reasonableness test in K.V.P. Co. (1965), 16
L.A.C. 73, a test which was central to the Supreme Court of Canada’s analysis in
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp &
Paper, Ltd., [2013] 2 S.C.R. 458.
{00323169;1}
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-- 11 --
i.
Charter values
Arbitrator Norman held that the question of whether a unilateral company rule which
intrudes on employees' privacy is reasonable must be examined through the lens of
“Charter values”. In so doing, the arbitrator imported into the analysis section 8 Charter
jurisprudence out of the Supreme Court of Canada. This jurisprudence considers the
underlying values of dignity, integrity and autonomy. Because employees who triggered
an alert from a dog were required to explain themselves in a backroom, the arbitrator
concluded that this constituted a serious intrusion upon their reasonable expectation of
informational privacy or their “biographical core”. A forced explanation could, in the
arbitrator’s view, reveal intimate information about the employee’s lifestyle.
ii.
Threshold question and balancing of interests
Arbitrator Norman referred to Irving’s balancing of interests approach in weighing the
privacy concerns of the employees against the safety concerns of the employer. The
arbitrator held, however, that before such a balancing approach could be applied, there
had to be an initial threshold consideration of whether there was an actual safety
problem justifying the policy:
The prior threshold stage in the justificatory argument limiting rights under the Charter
sets the bar very high; calling for proof of a pressing and substantial objective
demonstrably justifiable in a free and democratic society, for the challenged measure.
Under “Charter values” analysis, I take the threshold bar to have been set by Irving
as "evidence of enhanced safety risks, such as evidence of a general problem
with substance abuse in the workplace" ….
[Emphasis added.]
In this case, the employer did not adduce sufficient evidence to establish a general
problem of drug use at its worksite and thus fell short of meeting what Arbitrator Norman
saw as the threshold standard set in Irving. The arbitrator ruled that factors which do not
form part of the threshold analysis such as deterrence, detection and risk reduction did
not come into play, and went on the conclude that the employer’s “search/interview”
process was in violation of the collective agreement.
Interestingly, it was not the drug sniffing dogs per se that Arbitrator Norman found to be
objectionable. Even though the balancing of interests analysis was not performed by the
arbitrator, he opined that the minimal intrusiveness of the brief sniffing by a dog was to
be weighed in the balance together with the more intrusive lifestyle-related questioning
which would ensue in the backroom. The dogs were the means by which that
objectionable component was triggered.
With all due respect, Arbitrator Norman’s reasoning in this decision is flawed in at least a
couple of respects. It appears to represent a wholesale importation of Charter analysis
{00323169;1}
800 Park
Park Place,
Place, 666
666 Burrard
Burrard Street
Street || Vancouver,
Vancouver, BC
BC V6C
V6C 3P3
3P3
800
[email protected] || 604.806.0922
604.806.0922 || www.ropergreyell.com
www.ropergreyell.com
[email protected]
-- 22 --
into private contract law. At some point, there will no doubt be judicial consideration of
this.
As well, the arbitrator’s decision is silent with respect to the many arbitration decisions
over the last decade or so which stand for the proposition that in safety-sensitive
workplaces, the employer need not advance proof of an actual drug problem before
adopting drug testing policies (which are of course far more intrusive than the use of
drug sniffing dogs). The reality is that employees who use drugs or alcohol at work do
so illicitly and covertly and try very hard to avoid detection, making proof of an actual
problem notoriously difficult to prove by any means. Judicial consideration of the
threshold test articulated by Arbitrator Norman will be welcome.
Takeaways
This case appears to be part of a growing trend in the case law – the requirement for
proof of an actual problem at the worksite. Employers who are considering the use of
drug sniffing dogs to detect the movement of drugs onto a worksite should carefully do
their homework and compile as much evidence of drug use at work as possible.
Consider working with the EFAP provider and trying to obtain data which does not reveal
the identity of employees but speaks to the frequency of drug or alcohol treatments
among employees at the site. Document all incidents of drug or alcohol use including
the smell of marijuana and any discovery of drug paraphernalia, and think about using
anonymous surveys regarding drug use at work.
Employers may also want to engage a specialist to conduct on-site detection of drug
residue through carefully administered tests on work stations, equipment, controls, etc.
Adoption of measures such as drug detection dogs will likely be found unreasonable in
the absence of proof of an actual drug issue at the workplace.
Employers should also refrain from insisting that employees who are suspected of
bringing drugs onto the worksite be subjected to drug testing. The drug test will not help
prove that the employee was impaired at work. Keep policies about impairment
separate from policies aimed at preventing movement of drugs into the workplace.
It is not clear what the appropriate standard should be for introducing drug sniffing dogs
into a “search/interview” process, but the analysis should at a minimum recognize the
distinction between random tests for impairment and random searches for possession.
We would expect that this decision will be judicially reviewed. Until then, before
implementing a similar policy, employers should critically consider whether there is
actually evidence of enhanced safety risks due to drug use in their workplace.
{00323169;1}
800 Park
Park Place,
Place, 666
666 Burrard
Burrard Street
Street || Vancouver,
Vancouver, BC
BC V6C
V6C 3P3
3P3
800
[email protected] || 604.806.0922
604.806.0922 || www.ropergreyell.com
www.ropergreyell.com
[email protected]
-- 33 --
Kim G. Thorne is a lawyer at the Vancouver-based employment and labour
law firm of Roper Greyell LLP. He has extensive experience in all aspects
of workplace law and represents employers at arbitrations and before labour
relations boards, various tribunals and the courts. His clients represent a
broad spectrum of business in Canada, from forest products to diamond
mining, retailing to contracted services. Kim conducted some of the first
drug testing policy arbitrations in the forest industry in British Columbia,
remains very active in this area, and regularly speaks to employer groups on
these sorts of issues. For more information about Kim and his colleagues at
Roper Greyell, please visit www.ropergreyell.com.
David S. Louie is an articled student at the employment and labour law firm
of Roper Greyell LLP. He was previously a member of the legal and
advocacy group of a public sector employers’ association in Vancouver and
has experience in a wide range of labour, employment and workplace
human rights law issues. David can be reached by e-mail at
[email protected]. For more information about David and Roper
Greyell, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek
specific advice on matters of concern and not to rely solely on what is contained herein. The
article is for general information purposes only and does not constitute legal advice.
{00323169;1}
800 Park
Park Place,
Place, 666
666 Burrard
Burrard Street
Street || Vancouver,
Vancouver, BC
BC V6C
V6C 3P3
3P3
800
[email protected] || 604.806.0922
604.806.0922 || www.ropergreyell.com
www.ropergreyell.com
[email protected]
-- 44 --