Case Report – ABCA quashes Bantrel site access drug testing award

On March 9th, the Alberta Court of Appeal quashed an arbitrator’s endorsement of a site-access testing policy brought in by an Alberta construction site owner.

The arbitration panel’s March 2007 award was quite broad. Chairperson Phyllis Smith held that the parties’ incorporation of a model drug and alcohol guideline did not preclude pre-access testing of current employees and then focused most of her analysis on whether the testing requirement was reasonable in all the circumstances. See here for a summary.

Unlike the arbitration award, the Court of Appeal’s judgement is narrow and based on contract language. It held that the panel erred in holding that the parties did not preclude site-access testing by incorporating the model. The model referred to “pre-employment” testing, which the Court stressed was different than the “pre-access” testing of current employees. It held that the incorporation of pre-employment testing impliedly excluded pre-access testing.

The Court also read a clause that was unique to one of the three collective agreements very narrowly. The agreement specified that the “parties will cooperate with clients who institute pre-access drug and alcohol testing.” The Court read this as an agreement to negotiate, reasoning that the word “cooperate” was not strong enough to indicate an endorsement of pre-access testing given its exclusion from the model.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84 (CanLII).

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