On November 28, 2012, Alberta’s Court of Appeal upheld an injunction halting implementation of Suncor Energy Inc.’s (Suncor) new random alcohol and drug testing program (Program) until an arbitration board renders a decision on a grievance of the program.

The legality of mandatory random alcohol and drug testing remains a controversial issue for employers operating in the Alberta oilsands and Suncor appears to be at the forefront of such testing. Suncor’s ability to defend its new Program in the face of a grievance on behalf of the Communications, Energy and Paperworks Union, Local 707(Union) will have a major influence on whether such testing will be introduced (perhaps growing as a standard across the industry) or will be prevented from continuing.

Background

On July 19, 2012, the Union filed a grievance objecting to Suncor’s Program on the basis that it is contrary to the collective agreement, common law, the Personal Information Protection Act and the Alberta Human Rights Act.

The Program, which was to be implemented on October 15, 2012: (i) imposes random alcohol and drug testing with respect to Union members working in “safety sensitive” or “specified” positions (such positions make up 85 per cent of Union members working at Suncor’s operations in Fort McMurray); (ii) uses a computer-based random selection; (iii) tests a minimum of 50 per cent of those participating in the Program per year; and (iv) requires the provision of urine samples.

Alberta Court of Queen’s Bench Decision on Injunction

In response to Suncor’s decision to proceed with implementation of the Program prior to the Union grievance being heard, the Union applied for an injunction halting the Program.

The Alberta Court of Queen’s Bench considered the application and, on October 12, 2012, granted the injunction prohibiting Suncor from conducting the Program pending an arbitration decision on the Union’s grievance.

In coming to its decision, the court addressed jurisprudence on alcohol and drug testing, and recognized that the testing of employees constitutes a significant infringement of their personal privacy, dignity and bodily integrity.

Additionally, the court found that the three factors of the test for an injunction were satisfied. First, random alcohol and drug testing was found to be a serious issue to be considered. In this regard, the court took into account that the Supreme Court of Canada is scheduled to hear an appeal regarding a random alcohol testing policy (implemented in a unionized paper mill situated in New Brunswick) on December 7, 2012 (Communications, Energy and Paperworkers Union, Local 30 v. Irving Pulp and Paper Ltd., 2011 NBCA 58, leave to appeal to SCC granted [2011] SCCA No. 440). Second, irreparable harm to the Union was found to be a possibility as a result of the detrimental effects of the Program on employees, which could not be remedied in the event the Union is ultimately successful in shutting down the Program. Third, although safety was seen as a paramount concern for Suncor, a temporary delay in implementing the Program was deemed to be a mere inconvenience. Finally, the fact that the Union appropriately engaged the grievance process in a timely manner weighed in its favour.

Alberta Court of Appeal Decision on Injunction

Suncor applied to the Alberta Court of Appeal to lift the injunction until such time as an appeal of the Court of Queen’s Bench decision to grant the injunction could be heard. On October 22, 2012, Justice Watson of the Alberta Court of Appeal dismissed Suncor’s application for a stay and determined that “for this comparatively short period, the negative effect on Union members is visible, and the prospect of an actual increase in the margin of safety during such a short window of time is not enough to overcome that fact.” Justice Watson held that the balance of convenience favoured the injunction to remain in effect during the short period between the application and appeal. As such, the application of a stay of the order was dismissed.

On November 28, 2012, a three-member panel of the Alberta Court of Appeal heard the appeal of the injunction order and, in an oral decision, upheld the order citing the following reasons: (i) the Program is “a significant breach of workers’ rights”; (ii) non-consensual taking of bodily fluids is an affront to privacy rights; (iii) delay in implementing the Program pending the outcome of the grievance is acceptable given Suncor’s decision not to implement the Program with respect to contract employees until January 1, 2013; (iv) the Program is not limited to employees in dangerous positions; and (v) there is no evidence that the Program will have an impact on safety.

Upcoming Events

The Supreme Court of Canada’s decision in Irving Pulp and Paper Ltd. is expected to be heard on December 7, 2012 while the Union’s grievance in this case is expected to be heard by an arbitration board on December 10, 2012. The jurisprudence on the acceptability of random alcohol and drug testing has remained largely unresolved due to conflicting opinions in various jurisdictions. These decisions will provide clarity to employers on whether random alcohol and drug testing policies have a future in Canada.