Court File and Parties

CITATION: Mechanical Contractors Assn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, 2014 ONSC 6909

DIVISIONAL COURT FILE NO.: 494/13

DATE: 20141127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, HARVISON YOUNG AND D. M. BROWN J.

BETWEEN:

MECHANICAL CONTRACTORS ASSOCIATION SARNIA Applicant

– and –

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 663

-and –

GEORGE T. SURDYKOWSKI Respondents

Counsel:

Richard J. Charney and Pamela C. Hofman, for the Applicant

David P. Jacobs and Michael C. P. McCreary, for the Respondent, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663

HEARD at Toronto: November 27, 2014

Oral Reasons for Judgment

D. M. BROWN J. (orally)

I. Introduction

[1] In this Application for Judicial Review the Mechanical Contractors Association Sarnia seeks a declaration that the August 20, 2013 Award of the arbitrator, George T. Surdykowski, is without legal force and effect and an order quashing the Award.

[2] The arbitration resulted from a December, 2012 policy grievance filed by the Respondent Local in respect of the Applicant’s adoption of a direction from Suncor Energy Inc. that contractors providing goods or services to it in Canada, including its Sarnia facility, comply with Suncor’s “Contractor Alcohol and Drug Standard” (the “Suncor Policy”). One of the requirements of the Suncor Policy was the implementation of universal mandatory pre-access alcohol and drug testing. The grievance concerned the implementation of such testing for Suncor sites in the Sarnia/Lambton area.

[3] In the Award the Arbitrator declared that the pre-access alcohol and drug testing implemented in response to Suncor’s site access requirements was contrary to Article 10 of the Ontario Provincial Collective Agreement between the Applicant and the Ontario Pipe Trades Council and, as well, declared that such testing violated section 5(1) of the Ontario Human Rights Code. The Arbitrator ordered all of the Applicant’s member employers to cease and desist from conducting pre-access alcohol and drug testing of employees assigned or referred to perform work under the Ontario Provincial Collective Agreement.

II. Collective Agreement Issue

A. The standard of review

[4] As acknowledged by the parties, the applicable standard for reviewing the decision of labour arbitrators is reasonableness. Courts are to pay deference to labour arbitrators’ legal and factual findings when they are interpreting collective agreements. A court must approach the decision of an arbitrator as an organic whole, without a line-by-line treasure hunt for error. In the absence of finding that the arbitral decision, based on the record, was outside the range of reasonable outcomes, the decision should not be disturbed: Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34, paras. 7, 16 and 54.

B. The legal test applied by the Arbitrator

[5] In the present case, the Arbitrator, when examining the Collective Agreement Issue, applied the legal principles set out by the Supreme Court of Canada in its 2013 decision in Irving Pulp & Paper.

[6] In Irving Pulp & Paper, the Supreme Court of Canada observed that the dangerousness of a workplace, while highly relevant, marks only the beginning of the inquiry into assessing the reasonableness of unilaterally-imposed employer rules affecting employee privacy. The dangerousness of a workplace has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. As noted by the Supreme Court of Canada, what has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace: Irving Pulp & Paper, paragraph 31.

[7] In this case, the Applicant suggested that the analysis used in the Irving Pulp & Paper case was not applicable because there was a conceptual difference between random testing and the pre-access testing at issue in the Suncor Policy. We do not accept that submission. In Irving Pulp & Paper the Supreme Court of Canada distinguished between tests which resulted from employee conduct and those which did not, such as random testing. In our view pre-access testing is much more akin to random testing than to conduct-based testing. The Arbitrator therefore posed the appropriate question by using the accepted balancing of interests approach which emerged from the KVP case (Lumber & Sawmill Worker’s Union, Local 2537 v. KVP Co. (1965), 16 L.A.C. 73 (Ont. Arb.)) as described by the Supreme Court of Canada in Irving Pulp & Paper. In this regard, as discussed further in these Reasons, we reject the Applicant’s submission that the Arbitrator re-framed the Irving Pulp & Paper test by balancing profit against privacy, as opposed to safety against privacy.

C. The Arbitrator’s examination of the evidence

[8] The Arbitrator canvassed the risks that the employer intended to address by pre-access drug and alcohol testing, considered whether there was evidence of alcohol or drug-related problems in the workplace, and considered the impact of the testing policy rule on the employee’s rights to privacy: Irving Pulp & Paper, paras. 44 through 50.

[9] In his Award the Arbitrator conducted an extensive examination of the evidence and concluded that the Applicant’s evidence fell far short of establishing that there was any alcohol or drug problem at any Sarnia area Suncor worksite which justified the implementation of the pre-access alcohol and drug testing in issue: Award, paragraph 172.

[10] The Applicant took issue with the Arbitrator’s factual findings in two main respects:

The Applicant submitted that three findings made by the Arbitrator were unsupported by the evidence; and;
The Applicant submitted that the Arbitrator unreasonably discounted evidence adduced by the Applicant thereby failing to take into consideration relevant factors.

Submission that certain findings were unsupported by the evidence

[11] First, the Applicant submitted that the Arbitrator found that member contractors were motivated by profit, rather than safety, when they decided to implement pre-access testing, unreasonably “tipping the scale” against the Applicant.

[12] It is true that the Arbitrator spent some time in the Award dealing with the members’ motivation for implementing the Suncor Policy. Although the Arbitrator, in paragraph 210 of the Award, acknowledged that member employers in part were motivated by a concern about their employees’ workplace health and safety, the Arbitrator did state that, in his view, their primary motivating factor was the concern that they maintain their favourable competitive position with the site owners in the Sarnia area relative to non-union contractors. Notwithstanding this treatment of motivation, a review of the Award as a whole discloses that the Arbitrator clearly focused on and considered the applicable analytical factors identified by the Supreme Court of Canada in the Irving Pulp & Paper case. Specifically, the Arbitrator found that there was no evidence of any alcohol or drug problem at any Sarnia area Suncor worksite or even of any health and safety incidents at any Sarnia area Suncor worksite: Award, paragraph 172. Based on the evidence which was placed before the Arbitrator, that conclusion was reasonably open to him to make in the circumstances. Although the Applicant pointed to evidence of about three incidents related to a Sarnia area Suncor site, the Arbitrator weighed that evidence and concluded that it did not satisfy the threshold established by Irving Pulp & Paper. Under the reasonableness test it is not the function of this Court to re-weigh evidence. Of particular importance on this issue, in reviewing the evidence filed from Mr. Joe Vetrone, an officer at Suncor Energy Products Partnership, a subsidiary of Suncor Energy Inc., the Arbitrator stated:

There is not a single word in Mr. Petrone’s will say statement which suggests that there is a substance abuse problem at any Suncor facility in Sarnia/Lambton, much less one which demonstrably justifies the need for personally invasive pre-access alcohol and drug testing. [Award, paragraph 196].

That was an accurate summary of Mr. Petrone’s evidence. Consequently, regardless of the Arbitrator’s treatment of the evidence regarding the motivation for implementing the pre-access testing, the Arbitrator’s conclusion on the Collective Agreement Issue was supported by evidence directly material to the analysis required by the Irving Pulp & Paper decision.

[13] Second, the Applicant submitted that the Arbitrator conflated pre-access testing and random access testing. Such a conflation, in the Applicant’s submission, was a significant error because the jurisprudence suggested that there need not be a substance abuse problem to justify pre-access testing at safety-sensitive worksites. As discussed above, we see no merit in that submission. In Irving Pulp & Paper the Supreme Court of Canada stated:

[30] In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse…

That Court’s analysis disclosed that the reasonableness of other types of testing, such as universal random testing, would have to be assessed using the KVP balancing of interests approach. In his Award the Arbitrator applied that approach to pre-access testing and, as already indicated, we are satisfied that his approach was reasonable.

[14] Third, the Applicant submitted that the Arbitrator made a reversible error by treating the pre-access testing by member contractors as using saliva and oral fluid from employees when, in fact, such testing was performed by way of breath and urine samples. As the decision in Irving Pulp & Paper disclosed, that is a distinction without legal significance because the Supreme Court of Canada observed, in paragraph 50 of its decision, that the seizure of bodily samples, whether through testing by urine, blood or breath sample, was highly intrusive and a significant in-road on privacy.

Submission that the Arbitrator discounted certain evidence

[15] The Applicant submitted that the Arbitrator unreasonably discounted evidence about alcohol and drug use patterns in Southwestern Ontario and evidence of alcohol and drug use in the Sarnia workforce, thereby rendering unreasonable his award by failing to take into account relevant factors: Factum, paras. 53 to 61.

[16] The Arbitrator examined this evidence at some length in paragraphs 178 through 202 of his Award. It is clear from his review of the evidence that the Arbitrator did not accord that evidence the weight desired by the Applicant because the evidence did not specifically relate to a Suncor Sarnia area worksite, the location relevant to an assessment of the reasonableness of the pre-access testing rule. In light of the Supreme Court of Canada’s analysis in Irving Pulp & Paper, the Arbitrator’s assessment of the evidence from the perspective of its link to the Suncor Sarnia worksite was understandable and reasonable.

[17] Again, it is important to emphasize that it is not this Court’s task to re-weigh evidence.

D. Summary

[18] In sum, after reviewing the evidence, the Arbitrator concluded that there was “no evidence of an out-of-control or indeed any alcohol or drug culture in any Sarnia area Suncor workplace” (Award, para. 209) and that there was not a demonstrable need for the pre-access alcohol and drug testing in issue sufficient to justify the significant invasion of privacy inherent in such testing (Award, para. 213).

[19] Based on a review of the record, those conclusions of the Arbitrator cannot be said to lie outside the range of reasonable outcomes available in the circumstances of this case.

III. The language used by the Arbitrator in the Award

[20] As a ground of review the Applicant submitted that the Arbitrator’s use of “value-laden language, inflammatory terminology and sarcastic tone would leave a reasonable person with the thought that the arbitrator would not, either consciously or unconsciously, decide the merits fairly and impartially”. The Applicant submitted that the Arbitrator’s writing style conveyed the impression that he was emotionally invested in general privacy policy.

[21] In reviewing the Award as a whole we see no basis to accept the Applicant’s submission that the Arbitrator did not maintain the appearance of being a disinterested arbitrator. As the Irving Pulp & Paper decision stressed, an integral part of the KVP balancing of interests analysis in respect of the exercise of management disciplinary rights under a collective agreement involves the consideration of the privacy interests of employees, so it is understandable that the Arbitrator would spend time in his Award addressing that important interest. Moreover, the Award disclosed that the Arbitrator identified and applied the governing legal principles on the Collective Agreement Issue and conducted a detailed consideration of the evidence in light of those principles. As a result, we do not accept the Applicant’s submission that the language or the tone of the Award revealed any propensity by the Arbitrator to pre-judge the matter before him.

IV. Human Rights Code issue

[22] We have found that the decision of the Arbitrator in respect of the Collective Agreement Issue was reasonable. That finding supports the further conclusion that the Applicant is not entitled to an order quashing the relief granted in paragraph 224(d) of the Award that the Applicant and SCA Member Employers cease and desist from conducting pre-access alcohol and drug testing of employees assigned or referred to perform work under the Provincial Collective Agreement. As that is a sufficient basis upon which to deal with this application for judicial review, we see no need to address the Human Rights Code issue raised by the Applicant.

V. Conclusion

[23] For those reasons, the application for judicial review is dismissed.

Costs

SACHS J.

[24] I have endorsed the Application Record, “This application is dismissed for reasons given orally by D. M. Brown J. Pursuant to an agreement between the parties, the respondent does not seek costs and therefore there will be no award as to costs.”

D. M. BROWN J.

SACHS J.

HARVISON YOUNG J.

Date of Reasons for Judgment: November 27, 2014

Date of Release: December 1, 2014