Alberta Court of Queen's Bench Clarifies Carriers' Rights to Random Drug and Alcohol Testing – Pui C. Hong and Marie Boyd

CTLA Feature Articles and Case Notes

Alberta Court of Queen’s Bench

Clarifies Carriers’ Rights to Random Drug and Alcohol Testing

A recent decision of the Alberta Court of Queen’s Bench in Phillips v. Westcan permitted random drug and alcohol testing of long-haul drivers of dangerous goods, a decision that broadened the rights of motor carriers in implementing random testing for drivers. The Court stated that parties are free to contractually agree on conditions of employment so long as those conditions do not run afoul of employment standards, human rights and other applicable legislation. This is especially true when the express conditions of employment require an employee to agree to specific requirements, in this case, random drug testing. The Court noted in Phillips v Westcan, that due to the enhanced safety risks of the employer’s business, the employer would be justified in “unilaterally imposing random testing on its drivers”1. Interestingly enough, this case did not turn on whether the employer had a right to engage in random drug testing, rather, the issue was whether or not submission to random drug testing as a condition of employment was enforceable.

Background

Mr. Phillips was employed by Westcan Bulk Transportation Ltd. (“Westcan”) as a driver hauling dangerous goods over long distances.2 He began is employment at Westcan in 2013, left, then returned to Westcan in 2015.3 At the beginning of his most recent term of employment in 2015, Mr. Phillips refused to comply with the company’s random drug and alcohol test and applied for a permanent injunction to prohibit Westcan from randomly testing its employees for drugs and alcohol.4

Westcan has randomly tested safety sensitive employees since 1999.5 As part of its employment contract, Westcan’s Drug & Alcohol Policy states that all employees designated as safety sensitive, including company drivers like Mr. Phillips, are subject to random testing for alcohol and controlled substances.6 According to the policy, continuation of employment indicates acceptance of the policy.7 In addition, all employees are required to sign an expectation agreement which acknowledges their compliance with random drug and alcohol testing.8

Mr. Phillips participated in training in both 2013 and 2015, in which new employees were told that employees in safety sensitive positions were subjected to random drug and alcohol testing.9 The training program included an examination where Mr. Phillips correctly answered a question stating that safety sensitive employees are subject to random testing.10

In order to succeed in his application for an injunction, Mr. Phillips required an enforceable right to prohibit Westcan from randomly testing.11 After contemplating the issues of the case, the Court found against Mr. Phillips in this regard and his application for an injunction was dismissed.

Pui C. Hong and Marie Boyd*

Random Testing Was Agreed Upon

The first issue to be decided by the Court was whether random testing of employees for drugs and alcohol was a term of Mr. Phillips’ employment contract. The Court found that Mr. Phillips had agreed to random testing, shown through his acceptance of the employment offer, which required compliance with the company policies.12 According to the Court, Mr. Phillips knew that Westcan’s policies included random drug and alcohol testing for company drivers since the expectation agreement expressly stated this and since he had correctly answered a question during training showing his knowledge of that policy.13

Random Testing as a Term of the Contract Was Enforceable

The Court then addressed whether random testing as a term of the contract was enforceable. Mr. Phillips relied on Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp and Paper, Ltd. (Irving) to argue that random drug and alcohol testing is generally prohibited, unless there is evidence of substance abuse in the workplace or a similarly significant safety risk.14 Conversely, Westcan argued that the test from Entrop v. Imperial Oil Ltd. (Entrop) can be used here to justify a workplace rule.15

The Court questioned the relevancy of the two cases to the situation at hand. These cases did not address random drug and alcohol testing permitted by contract.16

Instead, Irving questioned the right to unilaterally impose testing through a management rights clause of an agreement.17 Entrop in turn examined whether unilaterally imposed testing was justified despite its discrimination towards substance abuse victims.18 The Court found that both cases were not applicable to Mr. Phillips’ claim.19

To determine the enforceability of the term of the contract, the Court turned to the general common law rule of contracts; that an employee and employer are bound to the terms of the contract.20 The Court then found no unconscionability in a provision permitting random testing.21 This decision was based on the specifics of Mr. Phillips’ work, being the inherent danger of the work and materials being carried and the frequency of serious accidents.22 For these reasons the term of the contract was deemed enforceable.23

Random Testing Would Be Justified Even Without Inclusion in the Contract

Finally, the Court considered whether Westcan would be justified in unilaterally imposing random testing, without contractual agreement. This issue was addressed to provide a decision to the main submissions of the parties.24 The Court applied the Irving test, the more stringent of the two tests, and the requirements of the test were met.25 The danger of the work, the lack of supervision, and the prevalence of substance abuse in the workforce convinced the Court that random testing was a proportionate measure to the work being performed.26

Commentary

It is no secret that safety is an integral part of the transportation industry. However, safety can encroach on the individual rights of employees. When considering drug and alcohol testing a balancing act is required when there is a conflict. Considering the inherent risk of hauling dangerous goods, random testing for drugs and alcohol seems to be a small price to pay to prevent injurious and even fatal accidents.

This case consequently broadens the rights of carriers in imposing random drug and alcohol testing. Although the Court made it clear that their reasoning is specific to the context of the case, this decision nonetheless permits carriers to enforce random drugs and alcohol testing through employment contracts.27 Going forward, this ruling may entice carriers to implement random testing by incorporating this condition into employment contracts.28 It is important to note, however, that employees must be informed of the policy for it to be enforceable.29

Endnotes

1 Phillips v. Westcan, 2020 ABQB 764, para. 6 (Can.). 2 Id. at para. 1. 3 Id. at para. 4. 4 John Gilmore & Tom Richards, Alberta Court Provides Guidance for Random Drugs and Alcohol Testing, BENNET JONES, https://www.bennettjones.com/Blogs-Section/Alberta-Court-Provides-Guidance-for-Random-Drug-and-Alcohol-Testing (May 4 2021). 5 Phillips v. Westcan, 2020 ABQB 764, para. 12 (Can.). 6 Id. at para 14. 7 Id. 8 Id. at para 16. 9 Id. at para 21. 10 Id. at para 22. 11 Id. at para 1. 12 Id. 13 Id. 14 Id. at para 25. 15 Id. at para 26. 16 Id. at para 27. 17 Id. 18 Id. 19 Id. 20 Id. at para 30. 21 Id. at para 32. 22 Id. at para 33. 23 Id. at para 34. 24 Id. at para 36. 25 Id. at para 46.