Injunctions - RJR - 'Irreparable Harm'. Power Workers' Union v. Canada (Attorney General)
In Power Workers' Union v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a preliminary motion for interim and interlocutory injunctions [under Federal Rules R373] in the course of an appeal of an unsuccessful union JR against a "regulatory document issued by the Canadian Nuclear Safety Commission", here on constitutional grounds. The policy in the impugned document, which the injunction would suspend if granted, established policy regarding "pre-placement and random alcohol and drug testing of safety-critical workers employed by the respondent employers at Class I high-security nuclear power plants".
This motion is essentially a stay pending appeal (a similar lower court stay was already issued in the JR proceeding), and as such is heard under the RJR-MacDonald doctrine:
B. Irreparable Harm. Wilson v. Meeches
 Under the second branch of the test, the appellants must show that they would suffer irreparable harm if the stay were not granted. “Irreparable” harm refers to the nature of the harm, not the magnitude. It is harm which “cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other” (RJR-MacDonald at 341). The harm cannot be “hypothetical and speculative” (Janssen Inc. v. Abbvie Corporation, 2014 FCA 112 at para. 24).
 The Stay Judge, on reviewing the same record that is before this Court, concluded that the appellants had established irreparable harm in respect of both impugned provisions of the RegDoc. The Stay Judge found that the appellants had not merely asserted a breach of section 8 of the Charter. The Stay Judge concluded based on “undisputed evidence”, that “the highly intrusive and non-consensual collection of bodily fluids is clear and concrete evidence of harm in light of the privacy interests engaged” (Stay Decision at paras. 86 and 106).
 On this motion, the appellants argue, echoing the reasons given by the Stay Judge, that the evidence of harm is neither hypothetical nor speculative, the privacy interests of the workers in their bodily fluids are at the “high end of the spectrum”, and these intrusions on privacy cannot be remedied after the fact.
 The respondents submit that the harms alleged by the appellants are hypothetical and speculative. They say that taking of bodily samples pursuant to the RegDoc is minimally invasive and the harm, if any, is mitigated by the workers’ diminished expectation of privacy working in the nuclear power industry and the privacy protections contained in the RegDoc.
 The respondent employers add, relying on the decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 at para. 67 [TTC], citing Jones v. Tsige, 2012 ONCA 32 [Jones], that the breaches of privacy can be remedied through awards of damages.
 This Court has held that allegations of a Charter infringement, without more, do not establish irreparable harm (Groupe Archambault Inc. v. Cmrra/Sodrac Inc., 2005 FCA 330 at para. 16; International Longshore and Warehouse Union Canada v. Canada (Attorney General), 2008 FCA 3 at paras. 26 and 33). Here, there is more.
 The non-consensual seizure of bodily fluids has been held to be highly intrusive, invading personal privacy essential to the dignity of the person (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 50 [Irving Pulp & Paper], citing R. v. Dyment, 1988 CanLII 10 (SCC),  2 S.C.R. 417, 55 D.L.R. (4th) 503 [Dyment]). This arises from the loss of control over personal information contained in the samples, and the use of the person’s body in the process by which that personal information is obtained (Dyment at para. 34). Here, the bodily samples are breath, saliva and urine.
 Compared to privacy interests in, for example, business documents, the privacy interests in bodily samples is “at the high end”. Accordingly, this type of seizure is subject to stringent standards and safeguards to meet constitutional requirements (Irving Pulp & Paper at para. 50, citing R. v. Shoker, 2006 SCC 44).
 The harm identified by the appellants has yet to occur, but it is neither hypothetical nor speculative. Once implemented, the impugned provisions of the RegDoc will result in mandatory pre-placement testing and random testing of safety-critical employees. Avoiding future harm is an essential feature of an interlocutory injunction (Horii v. Canada, 1991 CanLII 13607 (FCA),  1 F.C. 142 at 147, 7 Admin L.R. (2d) 1 (C.A.)).
 I accept the respondents’ submissions that the RegDoc includes features to protect the privacy interests of the safety-critical employees. I also accept that working in the highly regulated nuclear power industry reduces expectations of privacy.
 I would not go so far as to conclude that these mitigating factors cause any harm arising from the implementation of the impugned provisions to be “minimal” or that, as a result, the second branch of the test is not passed. Nor will I engage in an assessment of the severity or the reasonableness of the privacy intrusion by virtue of these potentially mitigating circumstances. That is not necessary or appropriate. It is a matter for this Court to consider on a full hearing of the appeal. The appellants have established that harm will ensue if the proposed injunction is not granted.
 The employer respondents say that any harm from the pre-placement and random testing can be remedied. They rely on TTC, where the Court concluded, in the context of an injunction application relating to random drug and alcohol testing, that damages for wrongfully obtained bodily fluids could be compensated. The Court relied on the damages analysis in Jones where the subject matter of the privacy invasion was an individual’s banking records.
 I am not persuaded by these authorities. TTC appears to stand alone in extending the analysis in Jones to conclude that the wrongful seizure of bodily samples is compensable. Also, as addressed by the Stay Judge, the workplace circumstances in TTC differed significantly from those at hand (Stay Decision at paras. 98-103).
 Other courts have concluded that invasions of privacy are not remediable with post-intrusion compensation (143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), 1994 CanLII 89 (SCC),  2 S.C.R. 339 at 382, 167 N.R. 321). This includes decisions confirming irreparable harm from the taking of bodily fluids, on the basis that the harm cannot be undone or fully remedied through monetary compensation (Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABQB 627 at para. 38, aff’d 2012 ABCA 373; Stay Decision at para. 104; Fieldhouse v. Canada, 1994 CarswellBC 2219 at para. 71,  B.C.J. No. 740 (B.C. S.C.)).
 I am satisfied that the appellants would suffer irreparable harm if the injunction were not granted. The breach of privacy rights engaged in submitting bodily fluids under the impugned provisions would result in harm that could not be undone or fully remedied with a retroactive award of damages. The appellants have met the second branch of the test.
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considered the RJR stay test, here the element of irreparable harm:
 To establish irreparable harm, there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted: Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255 at para. 31.. Sase Aggregate Ltd. v. Langdon,
In Sase Aggregate Ltd. v. Langdon, (Ont CA, 2023) the Court of Appeal considered the 'irreparable harm' element of the RJR stay pending appeal test:
(b) Irreparable Harm
 The second factor to consider is whether or not the moving party will suffer irreparable harm if the stay is not granted. Irreparable harm is harm that would result to the moving party if the order in question were not stayed pending the application for leave to appeal. It may arise if refusing to grant a stay would render the leave application and appeal moot: Donovan v. Sherman Estate, 2019 ONCA 465, at paras. 19-20; Ting (Re), 2019 ONCA 768, at para. 29; and Ducharme v. Hudson, 2021 ONCA 151, at para. 20.