Introduction
In the long-awaited appeal of Power Workers’ Union v. Canada (Attorney General),[i] the Federal Court of Appeal (FCA) upheld pre-placement and random alcohol and drug testing as constitutional and reasonable for safety-critical workers in the nuclear industry. This decision confirms the ability of legislature to include such testing requirements within safety-sensitive industries, and it will hopefully pave the way for more such legislation to help employers in their efforts to maintain workplace safety.
Background facts
In January 2021, the Canadian Nuclear Safety Commission (Commission) imposed the requirement for various forms of alcohol and drug testing as a condition to persons licenced to operate high security, “Class I” nuclear facilities (Licensees). The requirements for reasonable cause, post-incident and follow-up or return-to-duty testing were relatively uncontroversial, but as expected, the requirements for Licensees to (a) randomly test 25% of their safety-critical workforce each year, and (b) undertake pre-placement alcohol and drug testing were immediately challenged by unions representing affected workers.
The unions challenged the provisions of REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3 (the Regulations) that related to pre-placement and random testing (the Impugned Provisions) on two bases: (1) that the Impugned Provisions breached the rights of affected workers under sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms and were not saved by section 1 of the Charter, and (2) alternatively, that the Commission’s decision to implement the Regulations was unreasonable on administrative law grounds.
Based on the nature of the grievances, the arbitrator determined that he did not have jurisdiction and, therefore, judicial review proceedings were scheduled with the Federal Court. The Impugned Provisions were stayed pending the outcome of the judicial review. In its decision, the Federal Court rejected all of the challenges and upheld the Regulations, leading to the appeal before the FCA.
Decision
The FCA reviewed the applicable legislative framework and determined that the Commission, which is the sole nuclear regulator, has broad power and authority to subject Licensees to any terms or conditions that it considers necessary for the purposes of carrying-out the Nuclear Safety and Control Act. While the Impugned Provisions are contained in a regulatory document rather than an instrument, the FCA found that regulatory documents are frequently used to implement standards and requirements in the nuclear industry. The FCA then reviewed the three Charter claims and administrative challenge in turn.
Section 7 Challenge – Life, Liberty and Security of Person
The FCA determined that section 7 is not engaged, agreeing with the Federal Court that, from the point of view of a reasonable person, the relatively non-invasive nature of the seizure permitted by the Impugned Provisions, coupled with the absence of disciplinary consequences resulting from a positive test, does not rise to the level of serious and profound state-imposed psychological stress required to engage section 7 protection.
Section 8 Challenge – Search and Seizure
A section 8 challenge involves a two-step analysis: (1) does the impugned search or seizure interfere with an individual’s reasonable expectation of privacy, and (2) if so, is the action reasonable? The FCA reiterated that a flexible approach must be taken, calling for a contextual analysis. Here, the context involves a highly regulated industry, where a “wait and see” approach to safety is not appropriate. Therefore, despite no evidence of impairment being an issue at nuclear sites, there is evidence of gaps in the fitness for duty programs when it comes to addressing alcohol and drug impairment. Filling the gaps is a valid and compelling objective.
When considering reasonable expectations of privacy, the FCA clarified that a “twin subjective/objective enquiry” is required, determining reasonable expectation of privacy in the totality of the circumstances. The FCA followed prior case law in concluding that “safety-critical workers have a diminished expectation of privacy, given the nature of their work and the unique environment in which that work is being performed.” The FCA further concluded that the taking of breath, urine or saliva samples are amongst the less intrusive when it comes to bodily searches.
Despite the diminished reasonable expectation of privacy, the affected workers are entitled to protection of section 8, thus requiring an analysis of whether the Impugned Provisions are reasonable. Due to the presumption that searches and seizures without a warrant are unreasonable, the burden shifted to the state to establish reasonableness. The FCA determined that the Impugned Provisions were “authorized by law” and that the authorizing law itself is reasonable. Ultimately, the FCA concluded that the affected workers’ interest in being left alone by the government does not outweigh the government’s interest in intruding on privacy to advance the goals of limiting risk to national security, the health and safety of persons, and the environment associated with the development, production and use of nuclear energy.
Section 15 Challenge – Equality
The FCA agreed with the Federal Court that the Impugned Provisions create a distinction based on job category, which is not a distinction based on an enumerated or analogous ground of discrimination for the purposes of section 15, nor do the Impugned Provisions create a distinction based on an enumerated or analogous ground due to their alleged impacts on workers suffering from drug dependency. Notably, there is no evidence of drug dependency amongst safety-critical workers to support a claim that a disproportionate number would be affected by the Impugned Provisions. In any event, the FCA concluded that “there is nothing arbitrary in removing such worker from safety-critical duties until that worker is deemed fit for duty.”
Because the section 7, 8, and 15 challenges were not successful, the FCA did not undergo a section 1 analysis.
Administrative challenge
Under this challenge, the appellants argued that: (1) there were inadequate reasons for why the Commission approved the Regulations, and (2) there was fettered discretion. The FCA dismissed both arguments. With respect to the adequacy of reasons, the FCA found that the Commission was entitled to rely on the work done by its staff throughout the 10-year consultation process to support its decision, and that the Commission was actively engaged with the staff throughout the consultation process. With respect to fettered discretion, the FCA, again, reiterated that the Commission has the power to set conditions for Licensees, and the fact that the public had been invited to participate in the consultation process did not impair the authority to adopt and implement the Regulations.
Having addressed both the Charter challenge and the administrative challenge, the FCA dismissed the Appeal and upheld the requirement for pre-placement and random alcohol and drug testing of safety-critical workers in the nuclear industry.
Effect and takeaways
On its face, this decision carries little authority beyond the nuclear industry. The FCA (and Federal Court) made it clear that its decision was based on the “unique context” of the nuclear industry where incidents may result in devastating and long-lasting impacts on the community and the environment, noting that the nuclear industry is “unlike any other inherently dangerous industries in Canada.”
However, despite being unable to rely on the decision as authority for the implementation of pre-placement or random testing in all inherently dangerous industries, this decision is undoubtedly impactful for its commentary on the expectation of privacy in safety-sensitive positions, the invasiveness (or lack thereof) of testing methods, and the role of legislation in the implementation of requirements for alcohol and drug testing within regulated industries. The FCA’s practical, pre-emptive approach to safety in an inherently dangerous industry is a breath of fresh air for employers fighting to balance safety obligations with privacy rights, but its applicability across other safety-sensitive industries is yet to be seen.
For more information, please contact the authors, April Kosten and Carly Kist.
[1] Power Workers’ Union v. Canada (Attorney General) – Federal Court of Appeal
