In the Court of Appeal of Alberta

Citation: Unifor,Local 707A v Suncor Energy Inc,2018 ABCA 75

Date: 20180228
Docket: 1703-0321-AC
Registry: Edmonton

Between:

Unifor, Local 707A and Communications,Energy

and Paperworkers Union, Local 707
Respondents
(Applicants)

- and -

Suncor Energy Inc.

Appellant
(Respondent)

The Court:
The Honourable Mr. Justice Ronald Berger
The Honourable Mr. Justice Frans Slatter
The Honourable Madam Justice Patricia Rowbotham

Memorandum of Judgment of the Honourable Mr. Justice Berger

and the Honourable Madam Justice Rowbotham

Dissenting Memorandum of Judgment of the Honourable Mr. Justice Slatter

Appeal from the Order by

The Honourable Mr. Justice R.P. Belzil
Dated the 7th day of December,2017
Filed the 7th day of February, 2018
(2017 ABQB 752, Docket: 1703 21359; 1203 14853)
 Memorandum of Judgment

The Majority:

I. Introduction

[1] Suncor Energy Inc. appeals an interim injunction prohibiting it from implementing random
drug and alcohol testing of the Union's members in the Regional Mimicipality of Wood Buffalo
until completion of a new arbitration, unless the Supreme Court determines that a new arbitration
is unnecessary: Unifor, Local 707A v Suncor Energy Inc., 2017 ABQB 752.

II. Background

[2] Suncor introduced a drug and alcohol testing policy in 2003 which included post-incident
testing. An arbitration board ultimately concluded that the policy was justified. In 2012 Suncor
announced a new policy that would also include random drug and alcohol testing in
safety-sensitive positions. The Union obtained an interim injunction (upheld on appeal, "2012
Injunction") preventing random testing until an arbitration board rendered a decision on its
grievance against such a policy. The arbitration has been ongoing since, and the parties are
awaiting the Supreme Court's decision on whether it will grant leave to hear the Union's appeal of
Suncor Energy Inc. v Unifor Local 707A,2017 ABCA 313("2017 ABCA"). That decision upheld
a judicial review which set aside the arbitration award, and remitted the matter for a new
arbitration before a fresh panel.

[3] When Suncor refused to extend a 2016 standstill agreement, the Union applied for a
declaration that the 2012 Injunction remains in effect or, alternatively, for a new interim
injunction.

[4] The chambers judge commented that a judge hearing an interlocutory injunction
application should not delve too deeply into the evidence. He provided a summary ofthe evidence
but no opinion on the credibility of the affiants or the weight to be attached to their factual
statements or opinions. He vacated the 2012 Injunction given the passage oftime, and in reliance
on this Court's decision in 2017 ABCA and Communications, Energy andPaperworkers Union of
Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34,[2013] 2 SCR 458 {Irving), which
issued after the 2012 Injunction was granted. He considered afresh whether an interim injunction
should issue.

[5] The chambers judge noted that the parties agreed on virtually nothing except that the
Suncor site is dangerous. There was conflicting evidence about whether random testing is effective
in deterring drug and alcohol use in the workplace, and whether drug and alcohol use on the
Suncor site was increasing or decreasing over time. Given that the dangerousness ofthe workplace
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is not dispositive of whether random testing should be implemented, he was satisfied that there
were serious issues to be tried." Regarding irreparable harm, he held that the impact on the privacy
and dignity of the workers could not be remedied if the Union is ultimately successful on the
arbitration. Finally, he concluded that the balance ofconvenience favoured granting the injunction
because Suncor already has alcohol and drug control policies in place, and granting the injunction
would not result in an unprotected workplace. He reasoned that if the injunction were not granted
and the Union was ultimately successful on the arbitration, it would create chaos. Safety concerns,
while important, were not sufficient to tip the balance of convenience in favour of Suncor.
Maintaining the status quo also weighed in favour of granting the injunction.

III. Grounds of Appeal and Standard of Review

[6] Suncor contends the chambersjudge erred by:(i) misapplying the legal test and ignoring or
failing to adequately consider relevant evidence; (ii) failing to apply the law with a reasonable
view of the facts, resulting in a manifestly unjust outcome; and (iii) failing to consider the
significant deference that should be given to parties dealing with matters through negotiated
collective agreements, including the implementation of policies through their management rights
and the use ofthe grievance procedure.

[7] An interlocutory injunction is reviewed on a deferential standard unless an extricable error

of law is demonstrated, or the order is unreasonable or manifestly unjust: Globex Foreign
Exchange Corpv Kelcher, 2005 ABCA 419 at para 18, 376 AR 133. See also Clark v Laser Clean
Ltd(Don's Power Vac), 2016 ABCA 4 at para 7,609 AR 209.

IV. Analysis

[8] An interlocutory injunction is an extraordinary remedy. The onus is on the applicant to

establish that: (i) there is a serious issue to be tried; (ii) the applicant will suffer irreparable harm
(harm not compensable in damages); and (iii) the balance of convenience favours the injunction:
RJR — MacDonaldInc v Canada (Attorney General),[1994] 1 SCR 311, 111 DLR (4th) 385.

A. Examination of the Record

[9] The chambers judge relied on the Supreme Court's admonition that the first part ofthe test
(serious issue to be tried) should be determined on "the basis of common sense and an extremely
limited review of the case on the merits": Reasons at para 27 quoting RJR at para 78, with
emphasis added. He declined Suncor's invitation to engage in a detailed examination ofthe expert
reports, as this might amount to an unwarranted interference in the arbitration. Suncor alleges that
this was an error, as an examination of the evidence is necessary to evaluate whether there is
irreparable harm and whether the balance of convenience weighed in favour of safety rather than
privacy.
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[10] We agree that some examination ofthe evidence is necessary to evaluate irreparable harm
and balance of convenience. It is not entirely clear whether the chambers judge's comment
declining to engage in a detailed examination of the evidence was only in relation to the serious
issue to be tried, or also in relation to irreparable harm and balance of convenience. In any event,
although the chambers judge did not engage in a detailed review ofthe evidence, he was familiar
with it, had spent a day hearing the application and at the parties' urging, released a reserved
decision one week after the hearing.

[11] The thrust ofSuncor's argument is that in the course ofthe proceedings leading to the 2012
Injunction, both courts commented that there was insufficient evidence to establish that the
random testing policy would have any immediate effect on the prevention ofjob site accidents.
There is still conflicting evidence on this point and the arbitration panel will make the appropriate
findings. The chambersjudge summarized the evidence oftwo experts on behalfofthe Union who
opined that measurable improvement in public safety will not be achieved by random drug and
alcohol testing. He also had regard to Suncor's expert who opined that random drug and alcohol
testing strengthens deterrence, improves detection and decreases the risk of incidents.
Accordingly,the chambers judge did not fail to consider the evidence.

B. Error in Determining Irreparable Harm

[12] The chambersjudge found that ifthe Union was ultimately successful in the arbitration,the
impact on the privacy and dignity rights of the employees could not be remedied. This was the
finding of the majority of this Court in upholding the 2012 Injunction. In the absence of the
continuance of the injunction, the Union's employees would suffer irreparable harm. The
non-consensual taking of bodily fluids is a substantial affront to an individual's privacy, security
and bodily integrity: 2012 ABCA 373 at para 5. See also Irving at para 50.

[13] The evidence of several Union members highlights their experiences wi& the urinalysis
testing, and the associated embarrassment,shame and loss ofdignity. We are not persuaded of any
reviewable error in the chambers judge's conclusion regarding irreparable harm.

C. Balance of Convenience

[14] This is the heart of the appeal: balancing safety interests against privacy interests. Our
colleague has described the evidence adduced by Suncor of work place incidents since the 2012
Injunction, and the evidence of drug use at the workplace. There is clearly a serious safety issue.
[15] However, it is important to examine safety concerns in the larger context of drug and
alcohol testing currently conducted by Suncor. Suncor requires its employees to submit to alcohol
and drug testing in the following circumstances:

a) when there are reasonable grounds to believe an employee might be impaired;

 Page: 4

b) following a workplace accident, near miss, or potentially dangerous incident;

c) upon returning to work following a policy violation and pursuant to a last chance
agreement;

d) when a request for unannounced follow-up testing is made pursuant to a last chance
agreement; and
e) prior to being hired into or certified for a safety-sensitive position.

[16] The most current information provided by Suncor is of testing performed between 2003
and 2013. Based on the most recent statistics from 2009 to 2013,Suncor performed between 400 to
600 tests annually, with this number increasing gradually over time. For all reported years,
post-incident and follow-up testing encompassed a significant majority ofthe aggregate number of
tests. Only a small percentage ofthe Union members—between 5 to 8 percent on average—^tested
positive for drugs or alcohol during this period, and this figure decreased over time.

[17] Due to the lack of information since 2013, the Union attempted to extrapolate Suncor's
current testing practices based on historical trends. It estimates that Suncor conducts
approximately 41 post-incident tests each month in relation to union employees alone.

[18] Instituting random testing now would result in testing an estimated 1339 employees per
year(or 104 per month). It is therefore conceivable that some union employees would be forced to
comply with multiple tests within the same month ifrandom testing were permitted, constituting a
significant intrusion on their privacy, dignity and bodily integrity.

[19] Moreover, the bulk of the current authority (both case law and arbitration) holds that it is
unreasonable to randomly drug test even those employees in safety sensitive positions in a
dangerous workplace. An arbitration panel will ultimately conduct the "delicate, case-by-case
balancing required to preserve public safety concerns while protecting privacy": Irving at para 19.
In the interim, the balance of convenience favours the Union's position. This was the conclusion
reached by a majority of this Cotirt in upholding the 2012 Injunction.

[20] The chambersjudge also noted that maintaining the status quo was a factor which weighed
in favour of granting the injunction. We agree. This principle is well stated in a leading authority
on interim injunctions, American Cyanamid Co v Ethicon Ltd(Nol), 1975 UKHL 1 at p 5:

Where other factors appear to be evenly balanced it is a counsel ofprudence to take

such measures as are calculated to preserve the status quo. If the defendant is
enjoined temporarily from doing something that he has not done before, the only
effect ofthe interlocutory injunction in the event of his succeeding at the trial is to
postpone the date at which he is able to embark on a course of action which he has
not previously found it necessary to undertake; whereas to interrupt him in the
conduct of an established enterprise would cause much greater inconvenience to
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him since he would have to start again to establish it in the event of his succeeding
at the trial.

V. Conclusion

[21] In conclusion, we are not persuaded of any reviewable error in the chambers judge's
exercise of discretion. The appeal is dismissed.

Appeal heard on February 8, 2018

Memorandum filed at Edmonton, Alberta

this^g:^day of February,2018

\S'
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Q: Berger J.A
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Authorized t sign or: Rowbotham J.A.
Of
Appe
 Page: 6

Slatter, J.A.(dissenting):

[22] The issue on this appeal is whether an interim injunction should have been given,
restraining the appellant from implementing a random drug and alcohol testing policy pending an
arbitration decision on the reasonableness of that policy.

Facts

[23] The matter has a complex litigation history. In 2012 the appellant proposed to implement
random drug and alcohol testing at its oil sands facility near Fort McMurray, but the respondent
filed a grievance. An interim injunction was granted restraining implementation of the policy
pending the arbitration, and that first interim injunction was upheld on appeal: Communications,
Energy and Paperworkers Union,Local 707v Suncor Energy Inc.,2012 ABQB 627,84 AltaLR
(5th) 170, 548 AR 195, affirmed 2012 ABCA 373, 84 Alta LR (5th) 181, 539 AR 206. In 2014 a
majority of the arbitration board found the proposed policy to be unreasonable, but that decision
was set aside on judicial review: Suncor Energy Inc. v Unifor Local 707A,2016 ABQB 269, 38
Alta LR (6th) 381, quashing Unifor, Local 707A v Suncor Energy Inc. Oil Sands (Random
Testing Grievance)(2014),242 LAC (4th) 1. Thejudicial review decision was upheld on appeal,
and the reasonableness ofthe policy was remitted back to a fresh arbitration board:Suncor Energy
Inc. V Unifor Local 707A,2017 ABCA 313,57 AltaLR(6th) 1. An application for leave to appeal
to the Supreme Court of Canada has been filed: SCC #37854. As an interim measure, the
respondent applied for a second interim injunction restraining implementation ofthe policy, which
resulted in the decision presently under appeal: Unifor, Local 707A v Suncor Energy Inc., 2017
ABQB 752.

[24] The chambers judge applied the traditional tripartite test for an interim injunction. He
concluded that there was a serious issue to be tried, that members ofthe respondent union might
suffer irreparable harm if random testing was implemented, and that the balance of convenience
favoured the respondent. The reasons of the chambers judge are, however, largely conclusory.
They merely state that there would be irreparable harm if an injunction was not granted, and that
the balance of convenience favoured the respondent, without providing any detailed analysis.

[25] It is conceded that the appellant's operations are inherently dangerous, and that injuries and
death have occurred on site, some of them connected to impairment. The 2012 injunction was
granted, in part, because the appellant had not provided specific evidence about drug problems at
its facilities. More detailed evidence has been filed on this application. The appellant submits there
have been 26 workplace fatalities sinee 1970, including 5 since the 2012 injimction. There have
been 6 fatalities involving alcohol and drugs since 2007,including 3 since the 2012 injunction.

[26] Employees of the appellant have tested positive for cocaine, marijuana, alcohol,
amphetamines, methamphetamines, opiates, and oxycodone. Since the arbitration hearing 73
employees,, including 59 union employees, have tested positive. The appellant's security
department has discovered drugs, weapons, fake urine, urine tampering devices, and drug
 Page: 7

paraphernalia on the site. A number ofemployees have been found to be dependent on substances,
some have been accommodated through "last chance agreements", some have been banned from
the site, and some have been the subject of anonymous tips expressing safety concerns. The
appellant's concerns about substance use are not just hypothetical, and are supported by concrete
evidence.

Standard of Review

[27] The decision to grant an interim injunction is discretionary, and it should not be disturbed
on appeal unless it discloses an error of law or principle, or is unreasonable: Globex Foreign
Exchange Corp. v Kelcher, 2005 ABCA 419 at para. 18, 53 Alta LR (4th)258, 376 AR 133.
Examination of the Record

[28] The chambersjudge stated at para. 26 that he was "prohibited from delving too deeply into
the evidence". That represents an error in principle, because it is only accurate with respect to the
first branch of the test, which is whether there is a serious issue to be decided: see
RJR'MacDonald Inc. v Canada (Attorney General)^ [1994] 1 SCR 311 at pp. 331 American
Cyanamid Co. v Ethicon Ltd.,[1975] AC 396 at pp. 407-8 (HL).

[29] In American Cyanamid the Court of Appeal had decided that an interim injunction could
not be granted unless the applicant could demonstrate that, if the case went to trial based on the
evidence before the Court on the application, a permanent injunction would likely be granted. The
House of Lords reversed, holding that it was only necessary to show a serious issue to be tried. It
was in that context that Lord Diplock stated that the chambers judge should not delve too deeply
into the record, and attempt to try the merits of the case based on affidavits. This observation,
however, did not apply to the last two branches of the test: irreparable harm and balance, of
convenience. The chambers judge has an obligation to carefully consider all the evidence on the
record with respect to the other branches of the test. The failure of the chambers judge to fully
consider the record, and explain his conclusions on the last two issues, reflects reviewable error.

Serious Issue to be Tried

[30] There is clearly a serious issue to be tried: is random workplace drug testing reasonable?
The respondent has filed a grievance respecting the proposed policy, as it is entitled to do under the
collective agreement, and there is no indication that the grievance is unarguable or in any respects
frivolous.

[31] The appellant's evidence and argument focussed on the pervasiveness and safety
consequences ofthe presence and use of drugs on its site. This evidence appears to be directed at
the proviso set out in Communications, Energy and Paperworkers Union ofCanada,Local30 v
Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 31,[2013] 2 SCR 458 to the effect that random
sampling might be justified where there is a "general problem with substance abuse in the
 Page: 8

workplace". It cannot be said that this evidence is irrelevant, but it does not take away from the fact
that there is a "serious issue to be tried". It merely demonstrates that the appellant can advance a
"serious justification ofits policy". Ultimately, this issue must be decided by the arbitration board.

[32] The focus of this application must be on the identified serious issue, namely whether
random testing is reasonable. Evidence about individual cases, tests, methods, and results can
provide some context, but it also largely identifies other potentially grievable events.

Irreparable Harm

[33] The sampling in question involves either providing a breath sample into a breathalyzer
machine, or providing a urine sample in private. Each of these test procedures are minimally
invasive, and the actual testing would not take more than a few minutes. The record suggests that if
random testing was implemented, any particular employee might on average expect to be tested
once every two years. Testing is done by supervisors with specific privacy training. On any
objective basis the mere fact of providing a breath sample could not be described as inhumane,
humiliating, stressful, or embarrassing, and objectively it is difficult to see that it involves a breach
of"privacy, dignity and bodily integrity". Producing a urine sample in private is only slightly more
invasive.

[34] A review ofthe record discloses that the objection is miper se to the nature ofthe tests, but
rather to the very fact of being tested: Random Testing Grievance at paras. 21-5. The heavy
equipment operators who provided evidence at the first arbitration indicated that it was the fact of
being selected for testing, with the implication of an accusation that some illicit substances had
been consumed, that was seen as the source of most of the stress and breach of privacy. Others
reported stress arising from the risk or actual occurrence of a "false positive". These witnesses,
however, were subjected to testing under the "post-incident" testing policy previously in place. In
other words, they were all required to provide a sample because they had been involved in an
accident, incident or near-miss. Being required to provide a sample under those circumstances
might be seen by some as just a part of a thorough investigation, and by others as an accusation.
Those concerns would not, of course, arise from "random testing". Where random testing is
conducted,there can be no cloud arising from any particular incident or accident, and no inference
of misconduct; the testing is just "random".

[35] Some employees did complain about the maimer in which the testing was conducted. For
example, they complained that the testing took too long,there was insufficient privacy, the testing
rooms were not soundproof, they were unreasonably denied access to food and water, they were
not kept informed about the results of the test, etc. Those complaints, however, are not about
random testing per se^ but about the specific methods used on particular occasions. Ifthe methods
used are unreasonable that could be the subject ofanother grievance, but that does not indicate that
properly done random testing would be unreasonable.
 Page: 9

[36] The irreparable harm is said to arise from the breach of privacy and anxiety that might
result from being subjected to random sampling, should the policy ultimately be found to be
unreasonable. As noted, the perceived stigma associated with a post-incident test would not arise
with random testing. The actual testing is momentary in nature. On 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.

[37] It is true that damages can never undo a breach of privacy, but a remedy in damages can
never undo a personal injury, and the law does not pretend otherwise: Arnold v Teno,[1978] 2
SCR 287 at p. 332. The inability of money damages to heal does not create "irreparable" harm in
law. The assessment of damages for psychological injuries is well established: see Saadati v
Moorhead, 2017 SCO 28,[2017] 1 SCR 543. The harm from testing that might be suffered by a
union member might not be liquidated, but it is clearly remediable in damages: Amalgamated
Transit Unions Local113 v Toronto Transit Commission,2017 ONSC 2078 at paras. 64-93,275
LAC(4th) 187.

[38] On a reasonable assessment of this record, the respondent has failed to show the type of
irreparable harm that would justify an interim injunction, and the contrary decision of the
chambers judge reflects reviewable error.

Balance of Convenience

[39] The injunction application also fails on the balance of convenience.

[40] As noted, the "serious issue to be tried" is whether random testing is an unreasonable
policy. Both parties acknowledge that the interim injunction application is not a trial ofthe merits,
but both parties put forward extensive arguments on the merits. The appellant's arguments
focussed on the pervasiveness of drug use at its facility, and the serious risk that created. The
respondent's evidence focussed on the unreasonableness ofthe testing methods used in the past on
some discrete occasions, and the seriousness of the psychological consequences of testing. While
the "merits" might provide some context for determining where the balance of convenience lies,
this emphasis on the detail can easily be more distracting than helpful on this type of application.

[41] The conflict here is between the privacy rights of employees who would be subjected to
random testing, and the safety concems of co-workers arising from employees who are working
under the influence of intoxicating substances. The appellant employer also has positive legal
duties to ensure that the workplace is safe, which Ts properly factored into the balance of
convenience. The respondent argues that privacy is a "core workplace value", but so is a safe
workplace: Irving Pulp & Paper at para. 1. The respondent argues that privacy is a
"quasi-constitutional" value, but that is merely rhetorical in this context. It could just as easily be
argued that a safe workplace is a "quasi-constitutional value": compare the Charter's protection in
s. 7 of"security ofthe person". It is clear that employees do not give up their rights to privacy and
 Page: 10

dignity just by accepting employment, but their co-workers have a more pressing right to a safe
workplace.

[42] Criminal cases involving the taking of bodily substances are not helpful in this context
because they engage Charter rights respecting search and seizure, and the protections against
self-incrimination. The observation in some arbitration cases that police officers require
"reasonable cause" to take a sample overlooks the fact that s. 8 ofthe Charter specifically requires
reasonable cause. Workplace substance testing is not directed at imposing any criminal penalty on
the employee, but rather on ensuring a safe workplace for all employees. Broad statements in
criminal cases about the rights of citizens to be free from random testing by the police are of little
assistance, because different societal values, positive legal rights, and burdens ofproof are in play.

[43] To illustrate, m Mechanical Contractors Association Sarnia and XJA Local 663(alcohol
and drug testing), 2013 CarswellOnt 18985 at para. 126, the arbitrator noted that the criminal
justice system is "reactive rather than proactive", and "does not favour non-cause-related
preventative measures". That is precisely why criminal law pronouncements on collecting
substances are inapplicable. Safety is proactive rather than reactive, and is entirelv focussed on
"non-cause-related preventative measures". The respondent makes the argument that ". . . it is
particularly egregious for Suncor to attempt to use random urinalysis testing, not to measure
impairment which it cannot do, but to identify what it views as potential safety risks". What other
type of safety risks, other than "potential" safety risks, is a workplace safety program aimed at?
Hard hats, steel toed boots, safety railings, fire extinguishers, and most other safety equipment is
aimed atpotential safety risks; it is not considered acceptable to simply wait for something unsafe
to happen and then to clean up the mess.

[44] The respondent notes that 98% of the drug and alcohol tests performed at the appellant's
worksite are negative. This is an encouraging statistic, but barely relevant. It is like pointing out
that 98% of workers who wear hard hats never have anything fall on their heads, and then arguing
that the wearing of hard hats should be optional. The safety program is aimed at the other 2%,
which the widows and families of injured and killed workers undoubtedly regarded as being a
significant proportion. Further, it is not necessary to prove that all employees,or even a majority of
employees on a worksite are using substances in order to demonstrate a general problem with
substance abuse in the workplace.

[45] The respondent argues that urine testing does not always show impairment at the time of
testing, but merely past use. The serious issue to be tried is the reasonableness of random
sampling, which is not fixed ,to any particular kind of testing. It would be open to the arbitration
board to accept the reasonableness of random testing if the appellant used different types of
testing, such as oral fluid testing. Even if urine testing does not show impairment at the time of
testing, it does help identify and treat those who have a substance dependency. That is the group
who cannot control their consumption, and likely represent the greatest safety risk. The
identification of employees with a substance problem enables the appellant to trigger its policies
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that accommodate disabilities. Random testing also has a deterrent effect. Catching those who are
actually impaired at the moment oftesting is not the only purpose of random testing.
[46] 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. As
the dissenting member of the Court said in 2012 ABCA 373:

14 Killing or maiming people in a big accident, or a number of smaller

accidents, is a uniquely weighty danger. The legal term "convenience" or
"inconvenience" scarcely suffices. The big issue here is the "balance of
convenience". Very full detailed and overwhelming evidence here shows the
dangers of accidents, and of the danger of drinking or drugs among workers.
Privately giving a urine sample to be tested for alcohol or drugs does not begin to
equal death or dismemberment, or widowhood or becoming orphaned, by an
accident. People routinely go to labs to give their physicians urine samples, and for
a far broader set of tests. If the chambers judge did not see comparing death or
maiming with that as the pivotal issue, that was error oflaw. And ifit was seen,the
contrary view is unreasonable, in my respectful view.

The reasons under appeal failed to consider these undeniable consequences, except to say at para.
64:"Safety concerns, while relevant, are not sufficient to tip the balance of convenience in favour
ofSuncor." The considerable evidence about ongoing problems with alcohol and drugs, which was
clearly relevant to whether an injunction should be granted, was not discussed. That evidence
overwhelmingly tips the balance of convenience in favour of the appellant.

[47] The chambers judge pointed out that if an injunction is not granted, but the policy was
ultimately set aside, there would be a period oftime when random testing was permitted, and then
a period of time when it was not. That is undoubtedly the consequence of refusing an interim
injunction, but it is an exaggeration to say that it would create "a chaotic situation". The chambers
judge also implied that failing to grant an injunction would amount to "judicially imposed testing",
but any testing would happen as a result of a decision by the appellant employer, not by the court.
Conclusion

[48] The decision to grant an injunction reflects reviewable error. The chambers judge erred in
not fully examining the record. The conclusions about irreparable harm and the balance of
convenience are outside the range of any reasonable conclusion. The appeal should be allowed,
and the injunction set aside. Ifthe Supreme Court of Canada grants permission to appeal, it is open
to the respondent to invoke the provisions ofthe Supreme Court Act, RSC 1985, c. S-26, s. 65.
[49] For completeness, it should be noted that it was not suggested that the Court of Queen's
Bench should not have entertained this application for an injunction, but should have deferred to
the arbitration board. It would appear that the jurisdiction of a superior court to issue an interim
 Page: 12

injunction in aid of arbitration was conceded in an earlier phase of these proceedings:

Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc., 2012
ABCA 307 at paras. 23-4, 81 Alta LR (5th) 53, 536 AR 325 (Watson JA). That concession is
supported by authority: Bisaillon v Concordia University,2006 SCC 19 at para. 42,[2006] 1 SCR
666; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v
Canadian Pacific Ltd.,[1996] 2 SCR 495 at para. 5. However,just because a superior court has
jurisdiction to grant an injunction in aid of an administrative procedure does not mean it should do
so. There is no reason in principle to think that an arbitration board is unable to grant interim relief
when it has jurisdiction over the substantive issue. The modern trend, particularly in the labour
context, is for superior courts to exercise restraint when invited to become involved in arbitrations.
The intervention of the superior court in this matter appears to have caused unnecessary delay.
There was no urgency or other extenuating circumstance preventing recourse to the arbitration
board for the requested interim relief.

Appeal heard on February 8, 2018

Memorandum filed at Edmonton, Alberta

this of February, 2018

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Appearances:

J.R. Carpenter and G.W. Nekolaichuk

for the Respondents

B.B. Johnston and A. Kosten

for the Appellant