Only weeks after what appeared to be a victory for employers with respect to random drug and alcohol testing, Unifor, Local 707 (the “Union”) has won the latest battle in the long and seemingly never-ending saga involving Suncor’s implementation of random drug and alcohol testing at its mine site north of Fort McMurray, Alberta.
Just over two months ago, the Alberta Court of Appeal issued a decision, which was widely regarded as a win for employers wishing to institute random testing. This case has been before the Courts since the fall of 2012. Despite some initial success by the Union in obtaining the injunction, and at arbitration, employers seeking to enforce random testing policies believed the path to random testing may have finally been cleared by the Court of Appeal’s ruling.
After that decision, Suncor had sought to implement the policy regarding random drug and alcohol testing beginning December 1.
With this new deadline looming, the Union applied for an injunction prohibiting Suncor from implementing the random testing program and attempting to reinstitute the initial injunction decision of Justice Macklin, which was granted in fall of 2012, pending completion of the initial arbitration.
Both Suncor and the Union filed extensive Affidavits in support of their positions with respect to this new injunction application. On December 7, 2017, Justice R.P. Belzil reviewed the evidence and held that the Union met the test for an interim injunction. He concluded that the initial injunction from the fall of 2012 should be vacated, and deemed it appropriate to consider as a new issue whether the injunction should be granted. The decision of Justice Belzil can be viewed here.
Justice Belzil concluded that the Union met the well-established three-part test for an injunction. Specifically, it was held that if the Union was ultimately successful in the arbitration process, there would be irreparable harm due to the impact on the privacy and dignity of the workers. Justice Belzil further ruled that the balance of convenience favoured granting the injunction in order to preserve the status quo and, given that there are already a number of drug and alcohol control policies and practices in place at the Suncor site, the granting of the injunction would not result in an unsafe work environment.
Justice Belzil declined to rule on the merits on the arbitration itself.
Although this may be perceived as a setback for employers seeking to introduce these policies, it is not the end of the matter. The Union has previously announced its intention to seek leave to appeal to the Supreme Court of Canada regarding the Court of Appeal’s decision quashing the Union’s victory at arbitration. The decision on whether the Supreme Court of Canada will hear the union’s appeal is expected in the coming months.
We will continue to update employers with respect to this ongoing issue as it impacts many industrial employers with safety-sensitive work.