Northern Exposure

Appeal court upholds temporary injunction against drug and alcohol testing

By Kyla Stott-Jess and Katie Clayton

Canadian courts have been reluctant to allow random drug and alcohol testing in most workplaces. The issue was recently back before the Alberta Court of Appeal. Oil Company Suncor appealed an injunction against its new proposed drug and alcohol testing policy.

In Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABCA 272, the Alberta Court of Appeal upheld an injunction preventing Suncor from initiating random testing until an arbitration on the issue is completed. But the decision wasn’t unanimous.

Union fights against the policy

Following seven fatalities at one of its worksites since 2000 (three of which Suncor attributed to worker drug and alcohol usage), it introduced a new policy requiring employees in “safety sensitive” and “specified” positions to submit to random drug and alcohol testing.

The policy was set to go into force on October 15, 2012, for employees and January 1, 2013, for contractors. Under the policy, approximately 85 percent of union members working at the Suncor site would be subject to random testing. The selected employees would need to provide urine samples.

On July 19, 2012, the Communications, Energy and Paperworkers Union filed a grievance objecting to the new policy. They also applied to court for an injunction preventing Suncor from implementing its policy until the matter was decided by the arbitration board. The arbitration hearing was scheduled to begin December 10, 2012.

Trial court grants injunction

In October 2012, the Alberta Court of Queen’s Bench granted the union’s request for an injunction. The court applied the standard three-part test for an injunction. It looked at whether there was a serious question to be tried, whether irreparable harm would occur if an injunction wasn’t granted, and then applied a “balance of convenience” test.

The court found in favor of the union. Despite acknowledging the validity of Suncor’s argument about the “catastrophic” effect of potential fatalities, the court was swayed by the lack of evidence that a delay in implementing the policy until after the arbitration would make much of a difference. This was supported by the fact that the arbitration was set to start in December 2012. This was before the date that Suncor had set for applying the policy to contractors.

Court of appeal decision

On November 28, 2012, a split decision of the court of appeal upheld the injunction and dismissed Suncor’s appeal.

The majority of the court ruled that the invasion of privacy required by Suncor’s policy was an irreparable harm justifying the balance falling in the union’s favor. The dissenting judge disagreed and would have removed the injunction against Suncor. For him, the inherent risks of working at the Suncor facility combined with the magnitude of potential loss outweighed the minor invasion of privacy rights, at least in the interim.

Continuing debate and recent hearing at the Supreme Court of Canada

While the takeaway here is that random drug and alcohol testing in the workplace isn’t generally allowed in Canada, the issue is still alive and being vigorously challenged by industry.

A similar case was heard in early December by the Supreme Court of Canada, in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited 2011 NBCA 58 (See our Bulletin.) As in Suncor, the union plaintiff in Irving is challenging an employer’s policy mandating random alcohol testing for employees in certain positions. The Supreme Court has reserved its decision.

So stay tuned as we await this Supreme Court decision and the arbitration decision in Suncor. Both will undoubtedly have a dramatic impact on many workplaces.

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