The Applicant unsuccessfully sought a stay pending the Appeal of an injunction which stopped it from implementing a random drug and alcohol testing policy for union workers at a worksite. The union had grieved the policy and successfully sought an injunction until the grievance was heard.

The Court outlined the three part test required for a Stay: (1) a serious question; (2) irreparable harm in the absence of a Stay; and (3) that the balance of convenience favours granting a Stay. In the instant case, both sides argued that there would be irreparable harm if they were unsuccessful before the Court.

Watson J.A. noted that the exercise of a stay discretion has its roots in equity, which engages a holistic view of the positions of the parties. However, the Court cautioned against delving into the substantive merits of the Appeal when making a Decision on an Application for a Stay.

The Court was satisfied that the Applicant’s expressed concern to ensure a safe workplace constituted a serious question. In assessing irreparable harm, the Court noted that the likelihood of the apprehended injury and its possible consequences must be part of the assessment. The Court was persuaded that relieving the injunction so that the new policy could be implemented in advance of the Appeal, to be heard a little over a month later, would not create a sufficient increase in the margin of worker safety to outweigh the potential harm to human dignity engendered by the potentially improper intrusion into workers’ privacy. In light of the short time pending before the Appeal, the Court held that balance of convenience favoured upholding the injunction. The prospect of an actual increase in the margin of safety was outweighed by the very real and immediate impact upon Union members’ privacy.