Case In Point
Safety Incidents Alone Don’t Justify Drug and Alcohol Testing
Date: September 29, 2026
SaskEnergy Incorporated v. Unifor, a recent decision of the Saskatchewan Court of Appeal, confirms that the seriousness of a safety incident and an employee’s failure to follow safety protocols are not, by themselves, sufficient to make drug and alcohol testing a reasonable line of inquiry.
Before ordering post-incident testing, the employer must:
- conduct a genuine investigation that surfaces significant information, beyond the fact of the incident itself, connecting the employee’s conduct or role in the incident to possible impairment, and
- actually inquire into possible impairment, including by seeking an explanation from the affected employee and asking the supervisor and witnesses whether there was any reason to suspect impairment or unusual behaviour.
Background
The two incidents involved damage to buried natural gas lines. They were a 2019 trenching incident, after which four employees were sent for testing, and a 2020 backhoe incident after which a fifth employee was tested. All tested negative, and none were disciplined.
The five employees, members of Unifor, Local 649, grieved management’s decision requiring them to undergo drug and alcohol testing after the incidents.
The employer’s Drug and Alcohol Policy (Policy) permitted post-incident testing only “where requiring a test is a reasonable line of enquiry for the investigation” or “where there are reasonable grounds to believe” substances may have been a contributing factor.
The affected employees grieved management’s decision to require them to be tested on the basis that the employer had not complied with its Policy.
Employer’s Argument
The employer argued that post-incident testing was justified as a reasonable line of inquiry into the cause of each incident. Its theory was that experienced employees’ inexplicable failure to follow their training and safety protocols, coupled with their lack of explanation, made testing a legitimate investigative step. Testing would determine whether impairment contributed to the incident.
Relevant Decisions
Arbitrator’s Award
The arbitrator upheld the grievances. He determined that the employer had not complied with its Policy finding that testing was ordered not out of any concern about impairment but, for the 2019 incident, “as a deterrent to ensure they would be more cognizant of safety rules in the future,” and, for the 2020 incident, because the employee had operated the backhoe without daylighting before digging. The arbitrator declared the employer had improperly required the testing and ordered it to pay compensation of $1,500 each to the four employees involved in the 2019 trenching incident, and $2,000 to the employee involved in the 2020 backhoe incident.
Court of King’s Bench’s Decision
After addressing a preliminary evidentiary issue, a judge of the Court of King’s Bench decided the merits of the employer’s application for judicial review of the award. He found the award reasonable and dismissed the employer’s application for judicial review.
Court of Appeal’s Decision
The employer appealed both the evidentiary decision and the review decision of the Court of King’s Bench to the Court of Appeal, which dismissed both appeals.
On the review decision, the issue was whether the judge erred in finding the arbitrator’s award reasonable. Applying the reasonableness standard from (Canada (Minister of Citizenship and Immigration) v. Vavilov, the Court found that the arbitrator had not mischaracterized the employer’s central argument. He had considered the relevant evidence and the role of the crew leads. The Court also found that he had not made factual findings based on a misapprehension of the evidence or required proof of reasonable grounds to believe the employees were impaired.
What Employers Should Consider Before Testing
Before ordering post-incident testing, an employer must conduct a genuine investigation that surfaces significant information, beyond the fact of the incident itself, connecting the employee’s conduct or role in the incident to possible impairment. It must also inquire into possible impairment, including by seeking an explanation from the affected employee and asking the supervisor and witnesses whether there was any reason to suspect impairment or unusual behaviour.
Employers will be better positioned to defend a testing decision if they:
- build a documented basis for post-incident testing that is connected to impairment, including by recording observations, information, or unusual circumstances that support the connection, and
- actually inquire, including by seeking an explanation for the incident from the affected employee, their supervisor, and witnesses, before ordering testing.
For advice on implementing and enforcing drug and alcohol testing policies in the workplace, please contact your Hicks Morley lawyer.
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