As we first reported in the Summer 2014 edition of EMPLawyers’ Update, in 2012, Suncor announced a new policy that would include random drug and alcohol testing in safety-sensitive positions. The Union obtained an interim injunction preventing random testing until an arbitration board rendered a decision on its grievance against such a policy. The arbitration has been ongoing ever since. The parties are awaiting the Supreme Court’s decision on whether it will grant leave to hear the Union’s appeal of an Alberta Court of Appeal decision which upheld a judicial review application setting aside an arbitration award which had held the drug policy invalid, and remitted the matter for a new arbitration before a fresh panel.
When Suncor refused to extend a standstill agreement, the Union applied for a declaration that the 2012 Injunction remain in effect or, alternatively, for a new interim injunction prohibiting implementation until completion of a new arbitration. The Chambers Judge granted an interlocutory injunction, and Suncor appealed.
In a 2:1 decision, the Alberta Court of Appeal denied Suncor’s appeal, and the injunction remains in place. The dissenting Justice was of the opinion that the lower court decision to grant an injunction was in error, as the Chambers Judge had not fully examined the record, and that his conclusions about irreparable harm and the balance of convenience were outside the range of any reasonable conclusion.
In obiter, the dissenting Justice made interesting comments with respect to the power of an arbitrator to issue an injunction. While acknowledging the power of the courts to intervene, Justice Slatter stated:
“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.”