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Bulletin

The HR Space: Temporary Injunction Against Random Drug and Alcohol Testing

Fasken
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Labour, Employment and Human Rights Bulletin

The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk.

Random drug and alcohol testing in the workplace 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 (PDF), the Alberta Court of Appeal issued a split decision upholding an injunction preventing Suncor from initiating random testing until an arbitration on the issue is completed. 

Background

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 drug and alcohol 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% 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 (PDF). 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 was not granted, and then applied a “balance of convenience” test. 

The Court found in favour 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 Union’s 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 favour. 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 take-away here is that random drug and alcohol testing in the workplace is not generally allowed in Canada, the issue is still alive and being vigorously challenged by industry. 

A very 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: Court Okays Random Alcohol Testing).  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.

The Suncor arbitration hearings are continuing this month. Stay tuned as we await the Supreme Court decision and the arbitration decision in Suncor. Both will undoubtedly have a dramatic impact for many workplaces.

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