Suncor has once again been stymied
By Brittany Taylor and Stuart Rudner
In Unifor, Local 707A v. Suncor Energy Inc, the Alberta Court of Appeal upheld an injunction preventing Suncor from implementing random drug and alcohol testing at its mine site near Fort McMurray, Alta. The injunction will remain in place pending the outcome of a new arbitration on the matter, or a proclamation from the Supreme Court of Canada that such arbitration is unnecessary.
The decision, released earlier this year, represents yet another roadblock for Suncor in its ongoing quest to implement random drug and alcohol testing at its mine site, and also reinforces the incredibly high bar to be met by employers that want to utilize random testing as a deterrent against impairment in the workplace.
This is a battle that Suncor has been fighting since 2012, when it attempted to introduce a new policy that would include random drug and alcohol testing for employees in safety-sensitive positions. The litigation history is lengthy and complex:
- The union brought a grievance challenging the policy as an unwarranted invasion of privacy.
- The union also sought and obtained an interim injunction preventing random testing until an arbitration board could render a decision with respect to its grievance.
- An arbitration board heard the grievance and found in favour of the union.
- Suncor brought an application for judicial review of the arbitration decision.
- On review, the court found that the decision of the arbitration board was unreasonable, and sent the matter back for reconsideration by a new panel.
- The union appealed the review decision to quash the finding of the arbitration board, but the Alberta Court of Appeal upheld the decision.
- Unifor has sought leave to appeal the decision to the Supreme Court of Canada, which is still pending.
In the meantime, Unifor applied to the courts for a declaration that its initial injunction from 2012 was still in effect or, alternatively, for a new interim injunction. The Court of Queen’s Bench granted the injunction, finding that the three-part test had been satisfied:
- There were serious issues to be tried.
- The applicant would suffer irreparable harm if the injunction was not granted.
- The balance of convenience favoured the granting of the injunction.
The court found that while there was no question that the work site was dangerous, the evidence of the effectiveness of random testing as a deterrent in the workplace was inconclusive. As a result, it was clear that there were serious issues to be tried.
Furthermore, the court found that the impact on the privacy and dignity of the workers who would be subjected to the testing could not be remedied if Unifor was ultimately successful.
Finally, the court found that the balance of convenience favoured granting the injunction because Suncor already had alcohol and drug policies in place, so granting the injunction would therefore not leave the workplace “unprotected”. However, if Suncor was allowed to commence random testing, and Unifor was subsequently successful at arbitration, it would create “chaos” in the workplace.
Suncor unsuccessfully appealed the court’s decision to grant the injunction to the Alberta Court of Appeal. The majority of the Court of Appeal upheld the decision to grant the injunction.
Interestingly, Justice Frans Slatter disagreed, finding that the chambers judge had made a reviewable error in finding that Unifor would suffer irreparable harm if the injunction was not granted. In particular, he found that the union had failed to demonstrate that the invasion of privacy and impact on the dignity of the workers subjected to testing would be “irreparable”.
Rather, Slatter noted that “there is little apparent merit to the assertions that the psychological consequences of being subjected to a random test would be long-lasting, debilitating, or serious,” finding that providing a breath sample into a breathalyzer machine, or providing a urine sample in private, were minimally invasive forms of testing that would take only minutes to complete.
Further, Slatter found that the application should have failed on the balance of convenience test. In his view, the conflict at issue arose between the privacy rights of employees who would be subject to random testing, and the safety concerns of co-workers arising from employees who are working under the influence.
In this regard, he noted: “On an objective basis, any anxiety that results from being tested would last only hours, or days at the most. A serious injury to some other worker, on the other hand, could last a lifetime.” He also noted that the fact that Suncor has a positive legal obligation to ensure that the workplace is safe should have been factored into the balance of convenience assessment.
Despite Slatter’s strong dissent in this case, Suncor has once again been stymied, at least for the time being, in its attempt to implement random drug and alcohol testing. The decision is reflective of the extreme uphill battle employers face when attempting to implement drug and alcohol testing in the workplace, where such testing is not implemented as part of post-incident testing or where there is a reasonable basis to suspect an employee was impaired.
Fortunately, there are many less intrusive methods that employers can use to deter impairment in the workplace, including having a clear and unambiguous alcohol and drug policy in place which sets out the consequences of a failure to comply with its terms, and which encourages voluntary disclosure in cases of addiction.
Brittany A. Taylor is an associate at Rudner Law in Toronto.