March 7, 2018

Suncor’s Random Drug and Alcohol Testing Program Remains on Hold – Court of Appeal Upholds Injunction Decision

In a recent decision, 2018 ABCA 75, the Alberta Court of Appeal has upheld a decision of the Alberta Court of Queen’s Bench, in which the lower Court granted an injunction sought by Unifor, Local 707A (the “Union”) preventing Suncor from implementing random drug and alcohol testing at its Wood Buffalo site in northern Alberta.
Background
The dispute between Suncor and the Union concerning the random drug and alcohol testing program (the “Testing Program”) has a long procedural history dating back to Suncor’s implementation of the Testing Program in 2012.  The Union grieved the management decision to implement the Testing Program on the basis that it was an unnecessary invasion of employee privacy rights, taking the matter to arbitration.
While the arbitration panel upheld the Union’s grievance, that decision was ultimately overturned by the Alberta Court of Queen’s Bench, and the Court of Appeal.  The matter was sent back to a new arbitration panel.  That decision has now been appealed by the Union to the Supreme Court of Canada.  Please see our previous and more detailed report on the Court of Queen’s Bench decision here and the Court of Appeal decision here.
In the interim Suncor sought to implement the Random Testing Program.  To prevent Suncor from doing so, the Union applied for an injunction that would have the Court order Suncor not to implement the Random Testing Program until the matter was heard by a new arbitration board, or by way of appeal at the Supreme Court of Canada.
The injunction sought by the Union was granted by Alberta’s Court of Queen’s Bench in December 2017, and prevents Suncor from implementing random drug and alcohol testing at its worksite (the “Injunction Decision”).  Previously we reported on the Injunction Decision here.  It was this decision which was the subject of Suncor’s recent appeal (the “Injunction Appeal Decision”).
The Injunction Appeal Decision
In the Injunction Appeal Decision, Suncor argued that the Court in the Injunction Decision erred by misapplying the legal test related to injunctions and by failing to adequately consider relevant evidence (amongst other grounds of review).
In particular, Suncor argued that the lower Court’s refusal to engage in a detailed examination of Suncor’s expert reports (which opined that random drug and alcohol testing reduces the risk of accidents in the workplace) was a reviewable error. The majority of Alberta’s Court of Appeal did not agree with Suncor’s position, and found that the lower Court did not engage in any reviewable error of judgement.  The appeal was dismissed on this basis.
The Court of Appeal was not unanimous in its decision however.  The Honourable Justice Slatter, J.A. wrote a scathing dissenting opinion, finding that the employee privacy interests at stake were not sufficiently serious enough or impacted by random testing to such an extent that the exceptional remedy of an injunction was warranted.
Justice Slatter also had strong comments concerning the balance between workplace safety and employee privacy interests, finding that the safety interests of workers needed to be given priority in the assessment of whether the “balance of convenience” favoured an injunction as an appropriate remedy in the circumstances. In Justice Slatter’s view, the risk of serious injuries or death far outweighed the momentary anxiety or embarrassment associated with random drug and alcohol testing.
The opposite conclusion reached by the Alberta Court of Queen’s Bench and the majority of the Court of Appeal are troubling, and the interplay between employee privacy interests and workplace safety concerns will undoubtedly be further discussed in upcoming litigation both between these parties and elsewhere.
If you or your organization have any questions concerning this decision, or drug and alcohol policies or issues in your workplace generally, please contact a Mathews Dinsdale lawyer directly for more assistance.