In A Flash

Suncor’s Random Drug and Alcohol Testing Program Put on Hold – Union Requested Injunction Granted

December 7, 2017

Suncor’s Random Drug and Alcohol Testing Program Put on Hold – Union Requested Injunction Granted

In a decision released by Alberta’s Court of Queen’s Bench earlier today, 2017 ABQB 752 (the “Injunction Decision”) the Court granted Unifor, Local 707A’s application for an injunction to  stop Suncor from implementing random drug and alcohol testing (the “Random Testing Policy”) at its Wood Buffalo site in northern Alberta.
The effect of the Injunction Decision is that the Random Testing Policy will be suspended for the foreseeable future, pending the hearing of the matter by the Supreme Court of Canada and/or a new arbitration panel.
The decision is a disappointing and surprising one for many employers in Alberta.  Most surprising is the Court’s marked departure from the recent approach taken in Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078 (“TTC Transit”).  In that case the Ontario Superior Court rejected the Union’s request that it grant an injunction and in effect stop the Toronto Transit Commission’s random drug and alcohol testing program, until an ongoing arbitration was finished concerning its validity.
Background on the Legal Challenges to the Random Testing Program
The Random Testing Policy has been the subject of much litigation over the past six years.  In 2012, Suncor decided to implement the policy for workers in safety-sensitive jobs, in response to what the company had identified as a pervasive issue with drug and alcohol use at its oilsands operations. The Union then grieved that management decision, arguing that the Random Testing Policy unreasonably infringed workers’ privacy rights.
Ultimately, the arbitration panel upheld the Union’s grievance. However, the decision was overturned by the Alberta Court of Queen’s Bench in May of 2016.  The Court of Queen’s Bench determined that the arbitration board had made numerous errors, including ignoring important evidence associated with safety risks at the workplace. The Court ordered the matter be sent back to a new arbitration panel and that they apply a different test.  One that looked at the full picture at the worksite, not just one that focused on unionized workers.  Please see our previous and more detailed report on the Queen’s Bench decision here.
Earlier this year the Union lost its appeal of the Queen’s Bench decision at the Alberta Court of Appeal.  Please see our previous and more detailed report on the Court of Appeal decision here.  That decision has been appealed by the Union to the Supreme Court of Canada.  Whether or not leave to appeal will be granted by the Supreme Court remains to be seen.
After the Court of Appeal Decision was issued, Union applied for an injunction that would have the Court order Suncor to not implement the Random Testing Program until the matter was heard by a new arbitration board, or the Supreme Court of Canada.
The Injunction Decision
In the Injunction Decision, Honourable Mr. Justice R. Paul Belzil gave the Union what it asked for.
In granting the injunction, the Court found that:

  1. Suncor’s workers may have their privacy unreasonably invaded if random testing went ahead and that this type of a breach could not be adequately compensated for with damages if the injunction was not granted;
  2. privacy rights of workers are “as important as safety concerns”; and
  3. while safety concerns may be relevant, they are not sufficient to tip the balance in favour of turning down the Union’s request.

These conclusions are directly at odds with the Ontario Superior Court’s decision in TTC Transit, which found that privacy breaches could be remedied through monetary compensation, and that the public interest associated with the serious safety concerns present in the Toronto Transit Commission’s workplace outweighed the privacy interest of workers.  The Court, in effect, properly recognized that the consequences were so much more serious on the safety side than they were on the privacy side.
The opposite conclusions reached by the Alberta Court of Queen’s Bench in the Injunction Decision are troubling, particularly given that the Court expressly declined to engage in a detailed analysis of expert evidence outlining the nature and extent of the safety concerns at the workplace.
As a result of the Injunction Decision, Suncor will not be able to carry out random drug and alcohol testing until the matter is considered by a new arbitration board or the injunction decision is successfully appealed by Suncor.  Given that the original arbitration board took nearly two years to decide the issue of the prohibition on the Random Testing Policy in the first place, random testing could be delayed for a considerable amount of time.  Likely past July 1, 2018 when the recreational use of marijuana (aka cannabis) will be legal in Canada.
Suncor can appeal this decision, and may well do so.  Please stay tuned for future developments.   We are also happy to help you further understand how this decision affects your organization.  Please contact a Mathews Dinsdale lawyer directly for more assistance.
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