Second Interim Injunction Granted for Union at Suncor's Mine Site11-Dec-17
By Ainslie Fowler, Student-at-Law
On December 7, 2017, the Alberta Court of Queen's Bench released its decision on Unifor’s application for injunctive relief to prevent Suncor’s implementation of a random drug and alcohol testing program. Justice Belzil granted the interim injunction enjoining Suncor from implementing random testing at its mine site north of Fort McMurray, Alberta. A brief overview of the lengthy timeline of proceedings can be found here.
Justice Belzil outlined the importance of the 2013 Supreme Court of Canada decision Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. The rule in the Irving decision is that it is not correct to state that an employer can never impose random testing for drugs and alcohol. Rather, it may be justified on a balancing of safety concerns and privacy interests.
In order to obtain an Injunction the onus was on the Union to satisfy a tri-partite test as established in RJR-MacDonald:
- There is a serious issue to be tried.
- Irreparable harm will result if the Injunction is not granted and the Union is successful in its grievance.
- The balance of convenience favours granting the Injunction.
Serious Issue to be Tried
Justice Belzil held that due to conflicting expert evidence about whether random drug and alcohol testing is effective in deterring drug and alcohol use in the workplace, and in light of substantial disagreement as to whether drug and alcohol use at the Suncor site is increasing or decreasing over time, there was a genuine issue to be tried.
Justice Belzil held that the Irving decision established that privacy rights of workers are as important as safety concerns. Irreparable harm was found to result to workers if the Injunction is not granted because random testing could jeopardize employees’ rights to privacy and dignity.
Balance of Convenience
Justice Belzil concluded that the balance of convenience favoured granting the Injunction. Furthermore, Justice Belzil held that not granting an injunction would create a "chaotic" situation in the event the Union is successful in the Arbitration and Suncor is prohibited from continuing with random drug and alcohol testing.
According to the Judge, Suncor already has in place a number of drug and alcohol control policies and practices, so the granting of an Injunction would not result in an unprotected or unsafe work environment.
The Judge held that the request by Suncor to increase the scope of drug and alcohol testing by implementing random testing, would necessarily impact employees who have no drug and alcohol issues and who have not been involved in workplace incidents. Furthermore, Justice Belzil held that not granting an injunction would create “chaotic” situation in the event the Union is successful in the Arbitration and Suncor is prohibited from continuing with random drug and alcohol testing.
In conclusion, Justice Belzil granted the Interim Injunction for the Union. What is next in this longstanding litigation is whether the leave to appeal to the Supreme Court of Canada of the Arbitration decision is granted or denied. If leave is granted, Justice Belzil considers it highly likely the Supreme Court will refer the matter back to Arbitration. If leave is denied, the matter will go back to Arbitration as per the Court of Appeal decision released earlier this year. Justice Belzil concluded that a new Arbitration Board, where all the evidence is considered, is the forum to decide whether random drug and alcohol testing should be implemented. Until then, Suncor will be enjoined from implementing a random drug and alcohol testing program.