As promised in our last report on the long and winding legal road travelled by Suncor in its effort to implement random drug and alcohol testing at its mine site north of Fort McMurray, Alberta, this communique will provide an overview of the latest updates in this case.

On December 7, 2017, Justice Belzil of the Alberta Court of Queen’s Bench granted the application by Unifor, Local 707 (the “Union”) for an interim injunction that would prevent Suncor from requiring employees to undergo random drug and alcohol testing pending the outcome of a new arbitration on the matter, unless the Supreme Court of Canada grants leave to appeal and determines that a new arbitration is unnecessary.

Justice Belzil’s decision was appealed to the Alberta Court of Appeal, which issued a decision on February 28, 2018. The decision of the Court of Appeal was not unanimous: Justices Berger and Rowbotham upheld the lower court’s decision while Justice Slatter wrote a strong dissent in opposition of the interim injunction.

The majority of the Court determined that Justice Belzil had conducted an appropriately detailed review of the evidence and had applied the well-established three-part legal test for an injunction correctly, holding:

(1) serious issue to be tried: there was a serious issue to be tried (this finding was not disputed by Suncor);

(2) irreparable harm: the impact on the privacy and dignity rights of employees that could be subject to random testing was significant and could not be remedied in the event that the policy were eventually determined to be legally impermissible; and

(3) balance of convenience: although the evidence adduced by Suncor of workplace safety incidents and use of drugs on work sites demonstrated a serious safety issue, Suncor already had other comprehensive drug and alcohol testing policies (such as reasonable grounds testing and post-incident testing) in place to mitigate these concerns. Accordingly, the balance of convenience favoured upholding the status quo (no random testing) given the potential impact on the bodily integrity of those who would be tested pending the ultimate determination about whether the random testing policy is justifiable.

Justice Slatter, dissenting, found that Justice Belzil had made reviewable errors in his decision, as he did not fully examine the record and his conclusions about irreparable harm and the balance of convenience were outside of the range of reasonable conclusions.

With respect to the first part of the legal test, Justice Slatter found that there is a serious issue to be tried: whether random workplace drug testing is reasonable.

On the question of irreparable harm, Justice Slatter reviewed the record and found that “[o]n an objective basis there is little apparent merit to the assertions that the psychological consequences of being subjected to a random test would be long-lasting, debilitating, or serious.” In addition, Justice Slatter found that “[t]he harm from testing that might be suffered by a union member might not be liquidated, but it is clearly remediable in damages.” As a result, Justice Slatter determined that the Union failed to show that irreparable harm would result if an interim injunction were not granted.

Turning to the balance of convenience, the conflicting interests in this case are between the privacy rights of employees and safety concerns, recognizing that Suncor has a positive legal obligation to ensure a safe workplace. Justice Slatter states: “It is clear that employees do not give up their rights to privacy and dignity just by accepting employment, but their co-workers have a more pressing right to a safe workplace.” Justice Slatter further states: “On an objective basis, any anxiety that results from being tested would last only hours, or days at the most. A serious injury to some other worker, on the other hand, could last a lifetime.” Justice Slatter made note of the considerable evidence on the record of ongoing problems with alcohol and drugs in the Suncor workplace, which was not discussed in Justice Belzil’s decision. Justice Slatter found that this evidence overwhelmingly tips the balance of convenience in favour of Suncor.

While Suncor is prevented from implementing random testing for now, it will be interesting to see where this hotly contested matter will end up.