1703 21359 Unifor, Local 707A Applicant - v. -, 2017 ABQB 752

Court of Queen’s Bench of Alberta Citation: Unifor, Local 707A v Suncor Energy Inc, 2017 ABQB 752 Date: 20171207 Docket: 1703 21359, 1203 14853 Registry: Edmonton Between: 1703 21359 Unifor, Local 707A Applicant - and - Suncor Energy Inc Respondent And Between: 1203 14853 Communications, Energy and Paperworkers Union, Local 707 Applicant - and - Suncor Energy Inc Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________

[ 1 ] Unifor, Local 707A (Union) applies for an Injunction prohibiting Suncor Energy Inc. (Suncor) from implementing a policy of random drug and alcohol testing at its mine site north of Fort McMurray, Alberta. [ 2 ] Suncor has filed a Cross Application seeking to discharge or vary an earlier Injunction which prohibited the implementation of random drug and alcohol testing at the site.

History of the Proceedings [ 3 ] In 2003, Suncor introduced a drug and alcohol testing policy, including post-incident testing. [ 4 ] After the Union filed a grievance pertaining to the implementation of this policy, a Labour Arbitration Board ruled that the policy was justified based on evidence of drug and alcohol use by Suncor employees. [ 5 ] By way of a letter dated June 20, 2012, Suncor announced to its employees that it would be introducing a new drug and alcohol policy on October 15, 2012 which would include random drug and alcohol testing in safety sensitive positions. [ 6 ] In response to this announcement, the Union filed a grievance and applied to the Court of Queen’s Bench for an Interim Injunction prohibiting Suncor from conducting random drug and alcohol testing until a Labour Arbitration Board rendered a decision on the grievance. [ 7 ] On October 12, 2012, Macklin J, in a decision cited 2012 ABQB 627 , granted an Interim Injunction pending completion of the arbitration.

He directed that the grievance be considered as soon as possible (para 44). [ 8 ] Suncor sought a stay of this order in the Alberta Court of Appeal and on October 17, 2012 Watson JA dismissed the application, in a decision cited 2012 ABCA 307 . [ 9 ] On December 5, 2012, in a decision cited 2012 ABCA 373 , the Alberta Court of Appeal dismissed the appeal from the decision of Macklin J, Côté JA dissenting. [ 10 ] A three member arbitration panel heard the matter in 2013. The arbitration award was released on March 18, 2014.

The majority decision allowed the grievance whereas one arbitrator dissented and would have dismissed it. [ 11 ] Suncor applied for Judicial Review in the Court of Queen’s Bench of this award. In a decision dated May 18, 2016 and cited 2016 ABQB 269 , B.D. Nixon J granted the application for Judicial Review and remitted the matter back to arbitration before a fresh panel. [ 12 ] The decision of B.D.

Nixon J was appealed and on September 28, 2017, in a decision cited 2017 ABCA 313 , the Alberta Court of Appeal unanimously dismissed the appeal and confirmed that the matter was to be remitted for a new arbitration to be heard by a fresh panel. [ 13 ] The Union has filed an application seeking leave to appeal this decision to the Supreme Court of Canada which is expected to be decided in February 2018.

The Decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , [2013] SCC 24. [ 14 ] On June 14, 2013 the Supreme Court of Canada released its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd . [ 15 ] The Irving decision was an appeal of a judicial review of a grievance filed under a Collective Agreement.

The grievance related to an employer unilaterally imposing random alcohol testing in a workplace. [ 16 ] The majority of the Arbitration Board sided with the Union and ruled that Irving exceeded the scope of it management rights under the Collective Agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol. (para 8) [ 17 ] The New Brunswick Court of Queen’s Bench set aside the decision because of the dangerousness of the workplace.

This decision was upheld by the New Brunswick Court of Appeal. [ 18 ] The majority in the Supreme Court of Canada restored the decision of the Arbitration Board. [ 19 ] The Court addressed the need to recognize and protect both privacy and safety in the workplace. [ 20 ] At para 20, the majority noted that even in the context of a dangerous workplace, it is still necessary to balance safety and privacy interests. [ 21 ] At para 31, the majority noted that while dangerousness of the workplace is a highly relevant factor, it is not, standing alone, justification for the imposition of random drug and alcohol testing. [ 22 ] At paras 32-44, the majority noted that absent a demonstrated workplace problem, Arbitrators across Canada have not

concluded that employers could unilaterally implement random drug and alcohol testing. [23] At para 50, the majority observed that the Supreme Court of Canada has consistently ruled that the taking of bodily samples ishighly intrusive and must meet constitutional requirements. [24] At para 52, the majority concluded that it is not correct to state that an employer can never impose random testing for drugsand alcohol. Rather, it may be justified on a balancing of safety concerns and privacy interests.

The Evidence [25] The Union and Suncor have each filed extensive affidavits in support of their positions, including expert affidavits. [26] It is well established in the case law, that a judge hearing an Interlocutory Injunction application is prohibited from delvingtoo deeply into the evidence. [27] In RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at para 78 the followingpassage appears: 78 At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried.

Whether thetest has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of thecase on the merits. . . See also Dreco Energy Services Ltd v Wenzel, 2008 ABCA 290 at para 21. [28] In this case it is highly likely that the matter will be referred back to arbitration, either because leave to appeal to the SupremeCourt of Canada will be denied, or if leave is granted, the Supreme Court of Canada will refer the matter back to arbitration. [29] Counsel for Suncor invited me to engage in a detailed analysis of the expert reports placed before me.

I expressly decline to doso, for in my view, this would involve much more than a limited review of the case on the merits and would amount to unwarrantedinterference in the arbitration process. It is not my place to pre-judge the arbitration. [30] Mindful of this principle, I will comment on the evidence only by way of a brief

summary and will not offer any opinion onthe credibility of any of the affiants or the weight which should be attached to their factual statements or opinions. Union Evidence [31] The main Union affiant is Steve Kelly who swore affidavits on November 3, 2017 and November 23, 2017. [32] Kelly is the Secretary Treasurer of the Union.

In his affidavit of November 3, 2017, he deposed that absent any InterimInjunction the Union members would suffer irreparable harm to their privacy interests if random drug and alcohol testing wereimplemented by Suncor. [33] He further deposed to problems with the current drug and alcohol testing regime. [34] In his affidavit of November 23, 2017, he deposed that hazards associated with drug and alcohol use at the Suncor site areconstant or declining. [35] In the affidavits of Euclid Gauthier sworn November 2, 2017, John MacPherson sworn November 9, 2017 and Dan Doucettesworn November 9, 2017, the affiants depose to their negative experiences with drug and alcohol testing at the Suncor site. [36] In addition to the foregoing affidavits from Union members, the Union has filed an affidavit sworn November 23, 2017 fromDr.

Thomas Wild who is a professor in the School of Public Health at the University of Alberta and is a psychologist andepidemiologist. He has done research on substance abuse and the efficiency and effectiveness of prevention and treatment. [37] Attached to Dr. Wild’s affidavit, is a report dated November 23, 2017, which encloses a report from Professor ScottMacdonald dated August 30, 2013. Dr.

Macdonald has expertise in epidemiology and bio statistics and has conducted research in thefields of substance use and abuse and addiction. [38] He opined that measurable improvements in safety will not be achieved by random drug and alcohol testing. [39] Dr. Wild agrees with the opinion of Dr. Macdonald. Suncor Evidence [40] Suncor relies on an affidavit of Anne Marie Toutant sworn October 8, 2012. Ms.

Toutant is a Suncor Vice-President and inher affidavit outlined Suncor drug and alcohol testing procedures as of that date and also outlined drug and alcohol issues experienced atthe Suncor site. [41] On November 19, 2017, Mike Agnew, who is a Suncor Vice-President, swore an affidavit updating the information in the

Toutant affidavit. He outlined the number of employees who have tested positive for drug and alcohol tests for the period 2013 to October 31, 2017 and further outlined a number of incidents which led to post-incident alcohol and drug tests on site. In addition, he outlined a number of security incidents at the site wherein drugs and/or alcohol were discovered. [ 42 ] Suncor also filed an affidavit sworn November 17, 2017, from Dr. Mace Beckson, who is a clinical Professor of Psychiatry at the University of California at Los Angeles. [ 43 ] The affidavit includes an earlier report from Dr.

Beckson dated July 31, 2013 wherein he concluded that random alcohol and drug testing strengthens deterrence and improves detection and decreases the risk of incidents and injuries in the workplace. [ 44 ] In his affidavit sworn November 17, 2017, Dr. Beckson adopted his earlier conclusions. [ 45 ] Suncor also filed an affidavit from Dr. Leo Kadehjian sworn November 16, 2017. Dr.

Kadehjian is a toxicologist and expert in addiction. [ 46 ] His affidavit attaches a report from him dated April 2, 2013 wherein he concluded that random alcohol and drug testing, with its important deterrent effect, is a proactive and ongoing response to mitigate workplace safety risks. [ 47 ] In his affidavit sworn November 16, 2017, he adopted his earlier conclusions. The Interim Injunction Granted by Macklin J on October 15, 2012 [ 48 ] I have concluded that the Injunction of Macklin J should be vacated.

I have reached this conclusion based on the passage of time since the order was issued, the fact that the Court of Appeal upheld the decision on Judicial Review of D.B. Nixon J setting aside the original arbitration and that the Supreme Court of Canada issued its decision in Irving after Macklin J made his decision. [ 49 ] Given the circumstances, it is my view that it would be far more efficient to consider afresh whether an Injunction should issue.

The Test for Granting of an Injunction [ 50 ] It is well established that in order to obtain an Injunction the onus is on the Union to satisfy a tri-partite test as established in RJR-MacDonald : a. There is a serious issue to be tried. b. Irreparable harm will result if the Injunction is not granted and the Union is successful in its grievance. c. The balance of convenience favours granting the Injunction.

Serious Issue to be Tried [ 51 ] The parties agree that the Suncor site is dangerous but agree on virtually nothing else. [ 52 ] I have already noted that there is conflicting expert evidence pertaining to the issue of whether random drug and alcohol testing is effective in deterring drug and alcohol use in the workplace. [ 53 ] Moreover, while it is clear that there is an issue of drug and alcohol use at the Suncor site, there is substantial disagreement as to whether drug and alcohol use is increasing or decreasing over time. [ 54 ] As noted above, the Supreme Court of Canada in Irving accepted that the dangerousness of a workplace is not dispositive of whether random drug and alcohol testing should be implemented.

Privacy interests must still be considered. [ 55 ] It became readily apparent during the course of argument before me, that counsel for the parties have markedly different

interpretations of what Irving stands for and how it will be applied in this factual matrix. [ 56 ] In the result, I am satisfied that there are genuine issues to be tried. Irreparable Harm [ 57 ] As was highlighted in the Irving decision, privacy rights of workers are as important as safety concerns. In particular, the taking of bodily samples from anyone engages important constitutional issues. [ 58 ] If the Union is ultimately successful in the arbitration process, I do not accept that the impact on the privacy and dignity of the workers could be remedied. [ 59 ] In the result, irreparable harm will result if the Injunction is not granted.

Balance of Convenience [ 60 ] In my view the balance of convenience favours granting the Injunction. [ 61 ] It is uncontroverted, that Suncor already has in place a number of drug and alcohol control policies and practices.

The granting of an Injunction would not result in an unprotected or unsafe work environment. [ 62 ] The request by Suncor to increase the scope of drug and alcohol testing by implementing random testing, would necessarily impact employees who have no drug and alcohol issues and who have not been involved in workplace incidents. [ 63 ] If the Injunction were not granted and random drug and alcohol testing started, it would create a chaotic situation if, ultimately, the Union is successful in the arbitration with the result that Suncor would be prohibited from continuing with random drug and alcohol testing. [ 64 ] Safety concerns, while relevant, are not sufficient to tip the balance of convenience in favour of Suncor. [ 65 ] Maintaining the status quo is also a factor which weighs in favour of granting the Injunction: Edmonton Northlands v Edmonton Oilers Hockey Corp , 1994 ABCA 40 at para 29 . [ 66 ] This approach is commensurate with the position of the Alberta Court of Appeal which, in upholding the decision of B.D.

Nixon J, expressly declined to substitute its own decision on the merits, rather it remitted the matter for a new arbitration before a fresh panel. [ 67 ] Put another way, if random drug and alcohol testing is to be implemented, it will be as a result of the decision of the new Arbitration Board and not judicially imposed, yet if the Injunction is denied, random drug and alcohol testing will have been implemented without the benefit of arbitration considering all of the evidence. Conclusion and Order [ 68 ] The Interim Injunction is granted.

The Cross Application is dismissed. [ 69 ] If leave to appeal to the Supreme Court of Canada is granted, both parties should cooperate in having the appeal proceed as expeditiously as possible. [ 70 ] If leave to appeal to the Supreme Court of Canada is denied, both parties should cooperate in having the arbitration proceed before a fresh panel as expeditiously as possible. [ 71 ] As noted during argument before me, both counsel should conditionally reserve time in their calendars now for the new arbitration to proceed as expeditiously as possible in 2018, pending the decision of the leave to appeal application. [ 72 ] Either party may apply before me on notice to the other party for further advice and direction. [ 73 ] Costs may be spoken to.

Heard on the 30 th day of November, 2017. Dated at the City of Edmonton, Alberta this 7 th day of December, 2017. R. Paul Belzil J.C.Q.B.A. Appearances: John Carpenter, Gordon Nekolaichuk and Vanessa Cosco Chivers Carpenter Lawyers Counsel for Unifor 707A

Barbara B. Johnston, Q.C. and April Kosten Dentons Canada LLP Counsel for Suncor Energy Inc.