In the Court of Appeal of Alberta

Transcription

1 In the Court of Appeal of Alberta Citation: Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABCA 373 Between: Communications, Energy and Paperworkers Union, Local and - Suncor Energy Inc. Date: Docket: AC Registry: Edmonton Respondent (Applicant) Appellant (Respondent) The Court: The Honourable Mr. Justice Jean Côté The Honourable Madam Justice Myra Bielby The Honourable Mr. Justice Brian O Ferrall Memorandum of Judgment Delivered from the Bench Appeal from the Judgment by The Honourable Mr. Justice E.F. Macklin Dated the 12th day of October, 2012 Filed the 15th day of October, 2012 (2012 ABQB 627, Docket: )

2 Memorandum of Judgment Delivered from the Bench Bielby J.A. (for the Majority): [1] Suncor Energy Inc. appeals from the granting of an injunction prohibiting it from implementing a new random alcohol and drug testing policy for employees working at its Athabasca oil sands operation located near Fort McMurray, Alberta. The injunction operates until the receipt of an arbitration decision resulting from a grievance filed by the respondent, the Communications, Energy and Paperworkers Union, challenging the validity of this policy. Hearings before the arbitrator are set to commence December 10, [2] Suncor introduced this policy, to be effective October 15, It imposes random drug and alcohol testing on all Union members working in safety sensitive or specified positions. Apparently about 85% of all Union members work in such positions. It plans to randomly test a minimum of 50% of such employees every calendar year, or about 1445 Union members a year. It intends to require the same drug and alcohol testing of its contractors and their employees working on site as of January 1, [3] Since the granting of the injunction, Suncor has continued to test its employees under its preexisting drug and alcohol testing policy which allows that testing to occur only post-incident or in circumstances where it appears that an employee may be under the influence of such substances. [4] It is not necessary to decide whether the judge who granted the injunction had jurisdiction to add provisions aimed at expediting the arbitration due to our conclusion that those provisions are not so inextricably bound up with the rest of the injunction that what remains cannot independently survive. Nor can it be assumed that the judge would not have granted the injunction without those provisions. The reasons he gave for its implementation do not turn solely, or even substantially, on the avoidance of delay. [5] Otherwise, we are not convinced that the standard of review has been met in relation to the decision to grant the injunction. The first of the prerequisites for that relief, that a serious issue remains to be resolved, is conceded. Second, we accept that absent 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 rights. [6] Third, we do not conclude that the decision of the chambers judge was unreasonable, in determining that the balance of convenience favoured the granting of the injunction. His reasons for that decision include that a temporary delay in imposing random testing, if the arbitration board finds in Suncor s favour, would not be a great inconvenience to it, as Suncor has delayed the

3 Page: 2 implementation of the same policy for contractors and their employees until January 1, 2013; that the Union grieved in a timely manner; that the implementation of that new policy would constitute a significant change to the workplace environment; and that the grievance process will involve an assessment of Suncor s jurisdiction and evidentiary foundation for the new policy. [7] The evidence does not disclose that the application of this policy, detecting as it would only prior use of drug and alcohol, would have any immediate effect on prevention of job site accidents nor that it would do so more effectively than the currently operating policy, which limits testing to circumstances in which there is evidence creating a suspicion of drug or alcohol use. The new policy does not purport to limit its application to only those employees who operate machinery or otherwise engage in hazardous work; its application to safety-sensitive positions casts a wide net over employees whose work may not involve a real risk of accident. [8] Evidence shows that only 6% of employees tested under the original policy during the January 1, 2009 through June 30, 2012 period tested positive. Suncor experienced only seven fatalities at its workplace in the oil sands over the 12-year period from 2000 to 2012, with just three of those killed having been shown to have been under the influence of drugs and alcohol at the time of their deaths. There is no evidence of any environmental peril having been incurred due to employee substance abuse. Suncor offered no evidence that the operation of the current drug and alcohol policy had reduced rates of accidents during its years of application. [9] There is, therefore, no suggestion of immediate peril caused by wide-ranging drug or alcohol use, or significant risk of loss by accident at the Suncor site so as to swing the balance of convenience in favour of the more intrusive new policy, pending receipt of the arbitrator s decision. Simply brandishing the concern of accident, or the mention of the word safety, even in the context of this mining operation, is not enough to support the conclusion that such balance must favour the immediate implementation of such intrusive testing, on such a large number of Suncor s employees. [10] While receipt of the decision of an earlier arbitrator in relation to the current testing policy occurred after a multi-year delay, it is very unlikely that Suncor would tolerate such delay in this case, before turning to its remedies under s. 140(1) of the Labour Code. [11] The majority would therefore dismiss this appeal. We observe that if circumstances change, including through events which significantly delay the resolution of the arbitration process, Suncor may apply to lift, vary, or suspend the injunction in addition to triggering its s. 140(1) remedy. Appeal heard on November 28, 2012 Memorandum filed at Edmonton, Alberta this 5th day of December, 2012

4 Page: 3 Bielby J.A.

5 Page: 4 Côté J.A. (dissenting): [12] I would allow the appeal and remove the injunction. [13] Administrative inconvenience of Suncor is not the important issue, and at times tends to become a straw man. [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 of law. And if it was seen, the contrary view is unreasonable, in my respectful view. [15] See Alberta interlocutory injunction cases on the transcendental weight of physical safety: United Nurses of Alberta v St Michael s Health Centre, 2003 ABCA 5, 317 AR 319 (para 11); Alta v Edmonton (City), 2004 ABQB 373, 358 AR 122 (paras 35-36, 39). [16] The physical dangers would be bad enough if those facing the perils of accidents were all Suncor employees and members of the respondent union. But they are not; those people work alongside thousands of other workers. Any accident, ranging from a truck backing up to a huge explosion, is likely to kill or injure others. Maybe even to kill or hurt members of the public not employed at the plant in question. Those others have no say in this litigation. The evidence here shows that this plant contains a number of very dangerous substances, often under pressure or at high temperatures. Some small leaks could be catastrophic. Even mere inconvenience to the public or to non-parties is always a relevant factor for balance of convenience for an injunction: Pacific Western Airlines v International Union, United Automobile etc (1986) 70 AR 67 (CA) (para 23); Spry, Principles of Equitable Remedies (6th ed 2001), (8th ed 2010); Alta v Edmonton, supra; Laurent v Fort McKay First Nation, 2008 ABQB 84, 438 AR 103 (para 22) (quoting the Supreme Court of Canada); Numbers Erotique Boutique v Calgary (City) [1996] 2 WWR 511, 174 AR 345 (CA) (para 15); Edmonton Northlands v Edmonton Oilers Hockey Corp (1994) 149 AR 92 (CA) (para 15); Sharpe, Injunctions and Specific Performance, p 2-53 (para 2.530) (looseleaf ed Jan 2012 release). [17] Apart from dangers of death or injury, any sort of fire or explosion at an oil sands plant is likely to cause colossal financial loss from physical damage and loss of production. (Past Alberta litigation shows that.) And quite possibly to inflict heavy vicarious liability (tortious, contractual, or workers compensation assessment) on Suncor for the negligence of one of its employees. And maybe lead to prosecution under safety legislation. If this injunction gave Suncor a defence against a negligence claim, then the enormous loss could fall on innocent non-parties to the present suit.

6 Page: 5 [18] Even if an accident caused no death, no injury, and no significant direct harm to nearby individuals nor to Suncor, it could well produce spills, leaks, smoke, pollution, or death or harm to fish or wildlife. The public and media of North America and Europe already take an enormous interest in the environmental impact of these very oil sands plants. The environmental penalties imposed on Suncor after such an accidental event could equal those for the Exxon Valdez grounding or the BP well fire in the Gulf of Mexico. (One intoxicated man caused the Exxon Valdez incident.) And the media and government reaction against all the Fort McMurray plants and their producers and those marketing their products could then be enormous and incalculable. [19] It is not certain that there will be an accident or that substance impairment will cause it. But the evidence shows it is likely. The last arbitration did not produce a final result for 8 years, and Suncor alone has thousands of employees. Rarely is an interlocutory injunction about certainty; almost all are about possible dangers on both sides. To calculate those, one does not look only at percentage risk; one also looks at magnitude of loss if the risk materializes: United Nurses of Alberta v St Michael s, supra (paras 10, 12) (quoting Spry textbook). [20] Even if that mandatory random testing may not catch (or deter) all those who come to work under the influence of alcohol or drugs, that is not the legal test. Our fire departments, fire marshals, building inspectors, and police have not yet prevented all careless fires or impaired driving. The Ministry of Transport cannot detect all airplane pilots who drink or have impairing medical conditions. Yet no one would repeal those laws or disband those forces. [21] The onus of proof of balance of convenience is on the party seeking the injunction: Lido Industrial Products v Melnor Manufacturing [1968] SCR 769, 771, 69 DLR (2d) 256. If the balance is equal, there is no injunction: Canada Safeway v Excelsior Life Insurance Co (1987) 82 AR 316 (CA) (para 11). [22] Whether harm on both sides is reparable also has some weight in the balance of convenience. Infringement of privacy is reparable by paying money compensation, but hard to calculate and only in that sense not reparable. But compensation for death or personal injury is rarely fully compensated by torts law or workers compensation. Many heads of loss are openly and avowedly not compensated at all. Others do not survive death. Others (some huge, some modest) are artificially capped. The awards for pain and suffering are manifestly incomplete. [23] If the random testing policy here is thought too broad, making all of it illegal is illogical. The remedy would be an injunction against the excess portion or population only. Injunctions are often set aside for excess breadth. Appeal heard on November 28, 2012 Memorandum filed at Edmonton, Alberta this 5th day of December, 2012

7 Page: 6 Côté J.A.

8 Page: 7 Appearances: R. Khullar D.T. Williams for the Respondent (Applicant) T.W. Wakeling, Q.C. B.B. Johnston for the Appellant (Respondent) P.A. Gall, Q.C. A.L. Zwack for the Intervener Mining Association of Canada