Federal Court of Appeal upholds pre-placement and random drug and alcohol testing for “safety-critical” workers in nuclear industry
March 7, 2025, eAlert No. 285
Dismissing an appeal of a Federal Court decision filed by six individuals employed in various safety-critical positions and their unions, the Federal Court of Appeal upheld a policy that imposed pre-placement and random drug and alcohol testing for all safety-critical employees working in high security nuclear facilities. Endorsing the court’s determination that neither the applicants’ s.7 Charter right to life, liberty, and security nor their s.15 right to equality were engaged, the appellate court also found no error in the lower court’s ruling that while their s.8 Charter rights to be secure against unreasonable search and seizure were engaged, the testing was “authorized by law” because it was enacted pursuant to the regulatory scheme, and reasonable in light of the relevant contextual factors, including the significant public interest in nuclear safety. Also upholding as reasonable the lower court’s rejection of the applicants’ challenge on administrative grounds, the Court of Appeal dismissed the appeal.
The Facts:
When the Canadian Nuclear Safety Commission (CNSC) imposed pre-placement and random drug and alcohol testing on all “safety-critical” workers in Canada’s nuclear industry through a regulatory document (RegDoc), six affected workers and their unions challenged the testing in court.
The CNSC was established by the federal government through the Nuclear Safety and Control Act to regulate the nuclear industry in the public interest. All nuclear facilities in Canada must be licensed by the CNSC. The CNSC comprises both staff working within the regulatory body as well as a quasi-judicial tribunal and court of record, the Commission, which renders decisions to adopt policies on recommendations from staff, including the RegDoc at issue in the instant case, REGDOC- 2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3. Compliance with regulatory document requirements is mandatory for all licensees.
In 2020, after several rounds of consultation that began in 2012, a final draft of the RegDoc was approved for publication and use, requiring Class 1 high-security nuclear sites to implement random and pre-placement drug and alcohol testing for all safety-critical workers.
Section 5.1 of the RegDoc required licensees to conduct pre-placement testing of all candidates, both new and incumbent, who applied for a safety-critical position at a high-security nuclear facility. The RegDoc stipulated that pre-placement testing should not be used as a screening tool and should only be administered once a candidate had met all other necessary qualifications. Section 5.5 required licensees to have all safety-critical workers submit to random drug and alcohol testing, with at least 25 percent of the safety-critical worker population of all facilities tested randomly every year. Section 6.1 of the RegDoc provided for alcohol testing to be done through a breath sample administered by qualified technicians, and s.6.2 provided that licensees could choose accredited laboratory urine testing, accredited laboratory oral fluid testing, or a combination of both, for drug testing. The RegDoc established threshold or “cut-off” levels for the amount of substance that must be found to constitute a positive test result, which was then sent to a medical review officer (MRO) for verification. When faced with a positive test result, the MRO was required to offer the worker an opportunity to explain the results, and reported only verified positive test results to the employers. Finally, under s.6.3, workers who received a verified positive test result were removed from their duties and referred for mandatory substance abuse evaluation.
Safety-critical workers were a subset of highly trained, armed, nuclear security officers, who were responsible for maintaining the security of nuclear facilities, including authorized nuclear officers and unit control room operators. The CNSC estimated that the provisions applied to approximately 10 percent of the 12,000 workers at Canadian nuclear facilities.
Six individuals employed in various safety-critical positions at Canada’s high security nuclear plants, and their unions (the Power Workers’ Union, the Society of United Professionals, the Chalk River Nuclear Safety Officers Association, and the International Brotherhood of Electrical Workers, Local 37), filed an application for judicial review challenging the pre-placement and random testing provisions as contrary to ss.7, 8, and 15 of the Charter of Rights and Freedoms, and as unreasonable from an administrative law perspective. They sought a declaration that the pre-placement and random testing provisions were of no force and effect and an order quashing the CNSC’s decision to adopt the provisions.
Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 8 states that “[e]veryone has the right to be secure against unreasonable search or seizure.” Finally, s.15(1) provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Case History:
In a 112-page decision dated June 6, 2023, 2023 FC 793 (CanLII), reported in Lancaster’s Workplace Privacy Law, December 11, 2023, eAlert No. 58, Justice Alan Diner of the Federal Court dismissed the application for judicial review, ruling that the testing requirements did not breach the applicants’ Charter rights and that the CNSC’s decision to impose the testing was reasonable from an administrative law perspective.
Emphasizing the “unique” nature of the nuclear industry, in which “[a]ll [p]arties concur[red] that safety is the most important priority, and that public interest in nuclear safety is high” as “[a] nuclear incident can have devastating and long[-]lasting impacts on the community and the environment,” Diner held that the pre-placement and random testing provisions of the RegDoc engaged, but did not infringe, section 8 of the Charter. Applying the test set out in by the Supreme Court of Canada in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (CanLII), which asks: (1) whether the testing provisions engaged s.8, based on the claimant’s reasonable expectations of privacy; (2) whether the testing provisions were authorized by law, and (3) whether the testing provisions were reasonable, Diner held that, although safety-critical workers have “a diminished expectation of privacy when working at nuclear facilities, their residual privacy interest in the collection of their bodily samples is by no means eliminated,” as it is undisputed that the taking of bodily samples in the workplace without consent constitutes a search and seizure. Turning to whether the provisions were authorized by law, Diner rejected the applicants’ argument that an explicit statutory grant was required to allow for testing, opining that this position “fails to consider the regulatory context in which the seizure is authorized” and that the statutory basis to impose testing was found in the CNSC’s broad power to regulate the nuclear industry.
With respect to the reasonableness of the testing requirements, Diner consdiered that, although the guidance provided in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd, 2013 SCC 34 (CanLII), reviewed in Lancaster’s Labour Arbitration, eAlert No. 174, July 31, 2013, was “helpful,” it was not authoritative with respect to a s.8 analysis, observing that the balancing exercise mandated in the arbitration context “focuses on the relationship between the employer and the employees, and the terms of the collective agreement between them, [whereas] a section 8 analysis is more contextual and requires the examination of the totality of circumstances.” Accordingly, he held that he would apply the four criteria set out by the Supreme Court of Canada in Goodwin, namely: “(a) the purpose of the RegDoc and the provisions at issue; (b) the nature of the regulatory scheme; (c) the mechanism for obtaining the bodily samples, including the degree of intrusiveness; and (d) the subsequent review and possible redress for seizure, i.e. the availability of judicial oversight….”
Identifying the purpose of testing as “to standardize and improve… fitness for duty programs relating to drug and alcohol testing,” and opining that this was “a compelling purpose” that weighed in favour of a finding of reasonableness, Diner held that the regulatory, as opposed to criminal, context of the RegDoc, which served the broad public interest, also weighed in favour of reasonableness, and that the testing methods and cut-off levels were designed to measure very recent use and were thus a good “signal for possible impairment.” Noting that employees had an opportunity to explain any alternative reasons for a positive test, the absence of any disciplinary consequences, and the fact that any adverse consequence arising from a positive result could be appealed through judicial review, Diner concluded that the availability of judicial oversight weighed as well in favour of reasonableness. Thus, Diner held that the pre-placement and random testing provisions did not infringe s.8 of the Charter.
Addressing the ss.7 and 15 Charter arguments, Diner held that the arguments related to the taking of bodily samples were better considered under s.8. In any event, the applicants had not demonstrated that their s.7 interests were engaged, as a s.7 breach “requires more than the non-invasive taking of saliva, urine or breath samples to check for evidence of drugs or alcohol as a measure to protect the broader public,” and “does not protect property or other predominantly economic interests, including the right to practice a particular profession.” He also held that s.15 of the Charter was not engaged, as safety-critical workers at nuclear facilities are not a protected group for the purpose of s.15, and he was not satisfied that individuals experiencing “drug dependency” were an analogous group of persons living with a disability. Finally, Diner rejected the applicants’ challenge on administrative law grounds, holding that the regulator had statutory authority to impose testing, and that its decision to do so was reasonable.
The six affected employees and their unions appealed the Federal Court’s decision to the Federal Court of Appeal.
The Arguments:
The appellants argued that the lower court judge erred in dismissing the s.8 claim by: concluding that the employees had only a residual privacy interests in their urine, saliva or breath; misapprehending the requirements for a finding that the testing provisions were “authorized by law;” and failing to perform the appropriate balancing exercise in determining whether the seizure was reasonable. With respect to s.7, they submitted that the lower court judge erred by focusing his analysis on the safety-critical workers’ economic interests, and by finding that the taking of bodily samples did not constitute interference with bodily integrity. Under s.15, the appellants argued that the lower court erred by focusing on the safety-critical workers’ job category at nuclear facilities, instead of drug dependency as a category of disability, and by holding that persons who have a drug dependency are not persons with a disability for the purposes of s.15 without conducting a human rights analysis. Finally, the appellants again argued that the Commission had provided insufficient reasons to support its decision to impose the RegDoc, resulting in an unreasonable administrative decision.
The respondents’ arguments are not set out in the decision.
The Decision:
Writing for a three-member panel of the Federal Court of Appeal, Justice René LeBlanc dismissed the appeal, and upheld mandatory pre-placement and random drug and alcohol testing for safety-critical workers in Canada’s nuclear industry imposed under the RegDoc.
LeBlanc began by noting that, on appeal of a judicial review decision, the appellate court’s role is “to determine whether the Federal Court selected the appropriate standard of review and, if so, whether that standard was applied properly,” adding that it was “settled law … that this approach ‘accords no deference to the reviewing judge’s application of the standard of review’, therefore requiring the appellate court to “perform a de novo review of the administrative decision.”
Beginning with the lower court’s decision on s.8 of the Charter and endorsing the judge’s application of Goodwin, LeBlanc determined that the employees had a diminished expectation of privacy. In this regard, LeBlanc emphasized that this determination had both a subjective and an objective aspect, observing that “measuring a person’s reasonable expectation of privacy in a given circumstance will depend on the person’s subjective expectation of privacy in a subject matter, provided, however, that this subjective view is objectively reasonable,” based on the “totality of circumstances.” Noting that “[o]n the spectrum of intrusiveness when it comes to body searches, the case law is clear that the taking of breath, urine or saliva samples [is] amongst the less intrusive,” Leblanc held that the lower court judge did not err in his conclusion that safety-critical workers have a diminished expectation of privacy. Remarking that his decision was “largely informed by the ‘unique context’ of the nuclear industry where ‘safety is the most important priority,” LeBlanc stated:
[T]he nuclear industry is unlike any other inherently dangerous industries in Canada, like railways or chemical plants, given the magnitude and enduring damages a nuclear incident can cause to people and the environment. High security nuclear sites’ workers whose tasks are critical to ensuring the safety of those sites, and as a corollary to the safety of the public and the environment, cannot … reasonably claim a high expectation of privacy when it comes to controls put in place as a license condition statutorily required to operate such sites, regarding matters such as workplace drug and alcohol impairment, that can directly impact it.
Turning to the second aspect of the Goodwin test, under which the reasonableness of the testing is to be assessed, LeBlanc set out three requirements: (i) that the testing is “authorized by law,” (ii) that the law itself is reasonable, and (iii) that the manner in which the seizure or the search is carried out is reasonable. Emphasizing the appropriateness of “a flexible approach” in a non-criminal context, and more particularly “in the context of the highly regulated, safety first, nuclear industry,” LeBlanc agreed with the lower court’s determination that the statutory basis to impose testing was found in the CNSC’s broad power to regulate the nuclear industry. LeBlanc also held that the testing requirements were reasonable. Holding that the lower court judge was correct in declining to consider arbitral jurisprudence as conclusive given the different contexts, Leblanc observed that the issue in the case before the courts was “the validity of requirements imposed on employers, by a federal regulator as a legally binding condition, to the statutory license the employers must hold to carry on with any of the regulated activities,” which called for a “different, more nuanced, reasonableness analysis” than when considering the “unilateral exercise of a management rights clause in a collective agreement.” Thus, emphasizing the unique circumstances in which the requirements were established — a regulatory regime, in the nuclear industry, affecting only safety critical employees, in a context that was not explicitly disciplinary — LeBlanc rejected the appellants’ arguments about the reasonableness of searches without any suspicion of substance use, as well as the impact on the dignity and bodily integrity of the affected employees. In this regard, LeBlanc found that the lower court had appropriately considered the relevant considerations, including the nature of the regulatory scheme; the mechanism for obtaining bodily samples, including its degree of intrusiveness; and the availability of judicial oversight; and had correctly held that the testing regime did not violate s.8 of the Charter. In his view:
[I]in the unique context of this case, … the safety-critical workers’ interest in being left alone by the government does not, given the safety-critical nature of their work, outweigh the government’s interest in intruding on their privacy in order to advance its goals, namely limit the risks to national security, [and] the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy, including the risks of drug or alcohol impairment-related safety events.
Turning to s.7 of the Charter, LeBlanc endorsed the lower court judge’s determination that the employees’ security of the person was not engaged. Finding that the judge did not rely only on the employment/economic aspects, but also considered the appellants’ contention that the testing requirements engaged s.7 by compromising the safety-critical workers’ bodily integrity and, thereby, their security of the person, LeBlanc cited the Supreme Court of Canada’s decision in Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), for the proposition that, in order to engage s.7, the state action’s impact on an individual’s psychological integrity “must be ‘serious and profound’ and be measured ‘objectively’, that is from the perspective of the ‘person of reasonable sensibility.'” LeBlanc held that the circumstances before the Court did not meet this threshold, opining that “the relatively non-invasive nature of the seizure permitted by the [testing] requirements, coupled with the absence of any adverse disciplinary consequences resulting from a positive test, [do not] rise to the level of serious and profound state-imposed psychological stress that engages section 7’s security of the person protection.”
With respect to s.15(1) of the Charter guaranteeing equality rights, LeBlanc endorsed the lower court judge’s ruling that the appellants failed at the first step of the s.15(1) analysis, as they had not established that the testing regime created a distinction based on enumerated or analogous grounds. In this regard, he held that there was no error in the judge’s determination that a distinction based on job category — in this case, safety-critical workers versus non-safety critical workers — is not an enumerated or analogous ground under s.15. LeBlanc also held that it was not improper for the judge to have declined to accept the ground of “drug dependency” as a potential ground of discrimination in this case, pointing to the appellants’ failure to lead any evidence of drug dependencies among safety-critical workers, and noting that he was unwilling to “speculate that there might be a protected group of safety-critical workers suffering from a drug or alcohol dependency and as to what would be the impact of the [testing] requirements on them compared to the impact on other groups.” Moreover, LeBlanc noted that, even if he had determined that “drug dependency” was an analogous ground, he agreed with the lower court judge that the appellants had not established any denial of a benefit that perpetuated disadvantage, as those who were found to have a drug dependency would not be disciplined but instead offered treatment and accommodated, and that “there is nothing arbitrary in removing such workers from safety-critical duties until that worker is deemed fit for duty.”
Finally, LeBlanc saw no reason to interfere in the judge’s dismissal of the appellants’ alternative administrative law argument, finding that the record, when examined as a whole, showed that the requirements had been adopted after extensive consultation and pursuant to regulatory authority.
In the result, Justice LeBlanc dismissed the appeal and upheld the mandatory pre-placement and random drug and alcohol testing for safety-critical workers in Canada’s nuclear industry imposed under the RegDoc.
Comment:
As both levels of court emphasized in the decision under review, the analytical approach to a challenge to a drug and alcohol testing policy based on an unreasonable search or seizure claim under s.8 of the Charter differs from the approach to challenges to drug and alcohol testing policies in the labour arbitration context. In Irving, the leading case concerning an employer’s authority to impose a drug or alcohol testing policy where employees face disciplinary consequences for non-compliance, the Supreme Court of Canada upheld as reasonable an arbitration board’s ruling that, because of the need to balance the employer’s interest in the safety of its operations against employees’ privacy, an employer cannot unilaterally subject employees to a policy of random alcohol testing, even in dangerous workplaces, unless there is evidence of a general problem with substance use in the workplace. Justice Rosalie Abella, writing for the majority, emphasized that the dangerous nature of the workplace, while relevant to the inquiry, is not an automatic justification for the unilateral imposition of random testing, stating:
[T]he dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety[-]sensitive — is, while clearly and highly relevant, only the beginning of the inquiry. It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance [use] in the workplace.
Numerous decisions have applied the Irving test to strike down policies as unreasonable due to the failure to establish a workplace problem with substance use. See, for example, Ottawa Airport Professional Aviation Fire Fighters Association v. Ottawa Macdonald-Cartier International Airport Authority, 2022 ONSC 3298 (CanLII), reported in Lancaster’s Labour Arbitration, eAlert No. 322, March 3, 2023. In that case, the Ontario Divisional Court set aside a federal arbitrator’s decision that dismissed a policy grievance challenging random drug testing provisions for safety-sensitive positions contained in an airport authority’s alcohol and drug policy. Finding that the arbitrator unreasonably departed from established jurisprudence by upholding the random testing provisions despite the lack of any evidence demonstrating a drug or alcohol problem at the airport, and that the arbitrator never engaged with the very important employee privacy interests affected by mandatory testing, the Court concluded that there were serious flaws in the arbitrator’s analysis that rendered his decision unreasonable and referred the grievance to a different arbitrator for reconsideration.
Similarly, in Office and Professional Employees International Union v. Cougar Helicopters Inc., 2019 CanLII 125448 (CA LA), reviewed in Lancaster’s Labour Arbitration, eAlert No. 295, May 21, 2020, Arbitrator Susan Ashley, applying Irving, allowed a union’s grievance challenging a helicopter company’s unilateral implementation of random drug and alcohol testing for all safety-sensitive positions. Ashley rejected the employer’s assertion that the legalization of recreational cannabis had changed the safety landscape, and held that, although the employer’s work environment was severe and unpredictable, it did not represent an “extreme circumstance” that could justify random drug and alcohol testing in the absence of evidence of a more generalized workplace substance use problem. As well, in United Steelworkers, Locals 7884 and 9346 v. Teck Coal Ltd., 2018 CanLII 2386 (BC LA), reported in Lancaster’s Workplace Privacy Law, eAlert No. 10, November 20, 2018, B.C. Arbitrator John Kinzie struck down the random testing provisions of a coal mining company’s drug and alcohol policy, ruling that the significant intrusion on employee privacy rights was not justified by the company’s desire to reduce safety risks. Citing Irving, Kinzie found that there was insufficient evidence of a workplace problem with drugs, alcohol, or general safety to legitimize random testing and that the “modest” improvement in positive test results that occurred after the policy was introduced was not proportional to the “significant degree of infringement on employees’ privacy interests” that the testing entailed.
The Irving approach was also adopted in Suncor Energy v. Unifor Local 707A, 2017 ABCA 313 (CanLII), reported in Lancaster’s Human Rights in Employment, eAlert No. 315, June 19, 2018, (leave to appeal to the Supreme Court of Canada dismissed June 14, 2018). In that case, the Alberta Court of Appeal, citing the need to balance the employer’s interest in the safety of its operations against employees’ privacy, applied the principle in Irving that, as a general rule, an employer cannot unilaterally subject employees to a policy of random testing, even in dangerous workplaces, unless there is evidence of a general problem with substance abuse in the workplace. In that case, however, the Court of Appeal held that the majority of an arbitration board had erred in concluding that Suncor’s random drug and alcohol testing was an unreasonable exercise of its management rights, as the arbitration board had wrongly required Suncor to provide “particularized” evidence of a problem among Suncor’s unionized workforce, rather than accepting the evidence of a general problem with substance abuse in the workplace as a whole. Accordingly, concluding that “Irving calls for a more holistic inquiry into drug and alcohol problems within the workplace generally, instead of demanding evidence unique to the workers who will be directly affected by the arbitration decision,” the Court affirmed the lower court judge’s ruling remitting the matter to a new arbitration board.
However, endorsing the lower court’s approach, the appellate court in the instant case confirmed that the balancing approach endorsed in Irving is not authoritative with respect to the reasonableness of a seizure under a s.8 Charter analysis, in the context of a federal regulator tasked with safeguarding the public interest in safety, rather than an employer imposing a workplace policy. Instead, in the Court’s words, the correct approach is the “more nuanced, reasonableness analysis” employed by the Supreme Court in Goodwin, which “takes its colour from the totality of the circumstances,” including the purpose of the testing, the regulatory context, the reliability of the testing methodology, and the availability of judicial oversight.
Power Workers’ Union v. Canada (Attorney General)
Federal
Federal Court of Appeal
René LeBlanc, Yves de Montigny, and Richard Boivin
November 6, 2024
2024 FCA 182 (CanLII)
