Power Workers Union v. Canada (Attorney General)

Power Workers Union v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2022-01-21
Neutral citation
2022 FC 73
File numbers
T-1222-21
Decision Content
Date: 20220121
Docket: T-1222-21
Citation: 2022 FC 73
Ottawa, Ontario, January 21, 2022
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
POWER WORKERS UNION, SOCIETY OF UNITED PROFESSIONALS, THE CHALK RIVER NUCLEAR SAFETY OFFICERS ASSOCIATION, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 37, CHRIS DAMANT, PAUL CATAHNO, SCOTT LAMPMAN, GREG MACLEOD, MATTHEW STEWARD AND THOMAS SHIELDS
Applicants
and
ATTORNEY GENERAL OF CANADA, ONTARIO POWER GENERATION, BRUCE POWER, NEW BRUNSWICK POWER CORPORATION AND CANADIAN NUCLEAR LABRATORIES
Respondents
ORDER AND REASONS
I. Overview
[1] The Canadian Nuclear Safety Commission [CNSC] is responsible for regulating the use of nuclear energy and materials in Canada. In furtherance of this mandate, the CNSC issued a direction in January 2021 entitled Regulatory Document or REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3 [RegDoc-2.2.4 or RegDoc]. The RegDoc requires license holders operating Class 1 high security nuclear sites to implement employee alcohol and drug testing in defined circumstances.
[2] The Respondents, Ontario Power Generation, Bruce Power, New Brunswick Power Corporation and Canadian Nuclear Laboratories operate all licensed Class 1 nuclear facilities regulated by the CNSC [collectively, the Licensees or the Employers].
[3] The circumstances in which testing is required by the CNSC include random testing of employees in safety-critical positions and the testing of any candidate to be hired or transferred to a safety-critical position as a condition of placement. The latter is referred to as pre-placement testing. The CNSC directs that random testing of persons in safety-critical positions be required as of January 22, 2022. Pre-placement testing has been required since July 22, 2021.
[4] The Unions representing employees occupying safety-critical positions, the Power Workers’ Union [PWU], the Society of United Professionals [Society], the Chalk River Nuclear Safety Officers Association [CRNSOA], and the International Brotherhood of Electrical Workers, Local 37 [IBEW, Local 37], along with affected members Chris Damant, Paul Catanho, Thomas Shields, Matthew Stewart, Scott Lampman and Greg MacLeod [collectively, the Unions or the “Applicants], allege the collection of bodily samples for the purposes of random testing and pre-placement testing is contrary to labour arbitration case law and sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. The Applicants have filed an Application for Judicial Review of the CNSC direction.
[5] Pending final disposition of the Application for Judicial Review, the Applicants filed a Motion on January 4, 2022, seeking an interim and interlocutory injunction:
staying the implementation of the impugned provisions of the RegDoc;
restraining the CNSC from requiring the Licensees to implement workplace alcohol and drug testing based on the impugned provisions of the RegDoc as any condition of the licenses;
restraining the Licensees from implementing workplace alcohol and drug testing based on the impugned provisions of the RegDoc;
the costs of this Motion; and
such further and other relief as this Honourable Court may deem just.
[6] I am granting the Applicants’ Motion for a stay. First, having considered the merits of the case, I am satisfied the issues raised are neither frivolous nor vexatious. The Applicants have established a serious issue on this low threshold.
[7] I am convinced that the Applicants have established irreparable harm. Alcohol and drug testing involves the collection of bodily samples that engage significant privacy interests. Having considered the surrounding circumstances, I am satisfied that testing in the absence of reasonable grounds may unreasonably infringe upon those interests. Should the Applicants ultimately succeed on their underlying Application, those harms are not fully compensable through an award of damages.
[8] Each party may well suffer inconvenience where a stay is either granted or denied. In this instance, after balancing the interests and recognizing CNSC’s legislatively mandated responsibility for the safety and security of the nuclear facilities and operations in Canada, I have concluded the balance of “inconvenience” weighs in favour of the Applicants.
II. Background
A. Legislative Framework
[9] The CNSC is an independent administrative tribunal established in 2000 under the Nuclear Safety and Control Act, SC 1997, c 9 [NSCA]. The NSCA defines the Commission in reference to the whole of the CNSC. However, the CNSC includes both a staff complement that works within the CNSC and the independent administrative tribunal, the Commission.
[10] Section 9 of the NSCA specifically provides the Commission with the statutory authority to regulate the production and use of nuclear energy in order to prevent unreasonable risk to the health and safety of persons, protect the environment and ensure the security of Canada’s nuclear energy as well as to disseminate objective scientific, technical and regulatory information to the public. This encompasses the safety and security of Canada’s nuclear facilities:
9. The objects of the Commission are
(a) to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in order to
(i) prevent unreasonable risk, to the environment and to the health and safety of persons, associated with that development, production, possession or use,
(ii) prevent unreasonable risk to national security associated with that development, production, possession or use, and
(iii) achieve conformity with measures of control and international obligations to which Canada has agreed; and
(b) to disseminate objective scientific, technical and regulatory information to the public concerning the activities of the Commission and the effects, on the environment and on the health and safety of persons, of the development, production, possession and use referred to in paragraph (a).
9. La Commission a pour mission :
a) de réglementer le développement, la production et l’utilisation de l’énergie nucléaire ainsi que la production, la possession et l’utilisation des substances nucléaires, de l’équipement réglementé et des renseignements réglementés afin que :
(i) le niveau de risque inhérent à ces activités tant pour la santé et la sécurité des personnes que pour l’environnement, demeure acceptable,
(ii) le niveau de risque inhérent à ces activités pour la sécurité nationale demeure acceptable,
(iii) ces activités soient exercées en conformité avec les mesures de contrôle et les obligations internationales que le Canada a assumées;
b) d’informer objectivement le public — sur les plans scientifique ou technique ou en ce qui concerne la réglementation du domaine de l’énergie nucléaire — sur ses activités et sur les conséquences, pour la santé et la sécurité des personnes et pour l’environnement, des activités mentionnées à l’alinéa a).
[11] All persons who operate a nuclear facility must do so in accordance with a license issued by the CNSC (NSCA, subsection 26(e)). The CNSC can only issue, renew, amend, transfer or replace a nuclear license if the nuclear facility has demonstrated that they are qualified to carry on the requested activity in a manner that adequately protects the environment, the health and safety of persons, maintains national security and sufficiently implements Canada’s international obligations (NSCA subsection 24(4)).
[12] A licence may contain any term or condition that the CNSC considers necessary for the purposes of the NSCA (NSCA subsection 24(5)). Each licence contains various conditions that a licensee must follow in order to maintain its license. Each license issued by the CNSC stipulates that the licensees are to conduct themselves in accordance with their “Licensing Basis.” The Licensing Basis provides for requirements and conditions to be added to a licence through documents, including regulatory documents. This allows the CNSC to regulate the nuclear industry in a manner that is adaptive and flexible to new science, operational experience and changing international obligations (see Hunter affidavit at paras 15 – 19).
[13] Sections 12 and 17 of the General Nuclear Safety and Control Regulations, SOR/2000-202, detail the obligations of licensees and workers. These obligations include the requirements that every licensee have a “sufficient number of qualified workers to carry on a licensed activity safely” and every worker must “take all reasonable precautions to ensure the worker’s own safety, the safety of the other persons at the site of the licensed activity, the protection of the environment, the protection of the public, and the maintenance of the security of nuclear facilities and nuclear substances” (paragraphs 12(1)(a) and 17(e)).
[14] Pursuant to paragraph 3(d.1) of the Class 1 Nuclear Facilities Regulations, SOR/2000-204 [Class 1 Regulations], all license applications for a Class 1 nuclear facility must contain a proposed human performance program for the activity to be licensed, including demonstrating measures that ensure workers’ fitness for duty.
[15] RegDoc-2.2.4 is implemented by the Licensees as part of their human performance program. After implementation in accordance with CNSC directed implementation dates, the RegDoc forms a part of the Licensing Basis for each of the Licensees (Hunter affidavit at paras 30-32).
B. REGDOC-2.2. 4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3
[16] The purpose of the RegDoc is not disputed. Its objective is to bolster fitness for duty programs and policies that are already in place at Class 1 high security nuclear facilities in order to further the “defence-in-depth” principle.
[17] The defence-in-depth principle is integral to the nuclear industry. It ensures there are multiple safeguards in place to ensure the safe operation of a facility and that the failure of one component, human or mechanical, will not lead to an incident.
[18] The Applicants agree this principle is indispensable but claim that the provisions requiring random and pre-placement drug and alcohol testing for safety-critical employees are overly invasive and unnecessary given the robust fitness for duty programs that are already in place at every Class 1 nuclear facility.
(a) Development of the RegDoc
[19] In 2009, the CNSC identified fitness for duty as an area requiring further clarification for Licensees. The CNSC initiated a public consultation process in April 2012 regarding fitness for duty as it relates to drug and alcohol use. This process spanned 120 days. The CNSC published its first draft version of the RegDoc in November 2015 and a four-month public consultation process followed. The CNSC amended the draft version of the RegDoc in response to the feedback received, in part by limiting random and pre-placement drug and alcohol testing to workers in safety-critical positions.
[20] CNSC staffers further amended the RegDoc after its presentation for approval at a CNSC public meeting on August 17, 2017. The licensing branch of the CNSC directed the separation of the drug and alcohol use components from the medical, physical and psychological fitness components and requested a complete list of the scientific literature reviewed. The CNSC approved and published the RegDoc in November 2017 after these amendments were made. The CNSC published a second version with minor administrative changes in January 2018.
[21] The government of Canada legalized recreational cannabis and approved oral fluid testing for roadside use later in 2018. At the request of the Licensees, the CNSC deferred the implementation of the RegDoc to address these developments and undertake a public consultation process. The final draft was presented and discussed by the Licensees and Unions at a public meeting held by the CNSC. The CNSC approved the third version of the RegDoc in November 2020 and published it in January 2021, directing implementation by the Licensees by July 2021 with the exception of random testing for safety-critical employees. This is to be implemented by January 2022.
(b) Required drug and alcohol testing
[22] The RegDoc requires Licensees to conduct drug and alcohol testing of workers in safety-critical and safety-sensitive positions in five circumstances. Three of the five circumstances have not been challenged by the Applicants: reasonable grounds testing; post-incident testing; and follow-up testing upon return to work after confirmation of a substance use disorder before the worker is reinstated in their position. Workers in both safety-critical and safety-sensitive positions are subject to these categories of testing.
[23] The remaining two circumstances are those in issue. Pre-placement testing tests workers who are hired for, or transferred to a safety-critical position as a condition of placement. Random testing is required for safety-critical workers only and the number of random tests conducted annually must be equal to 25 percent of the safety-critical worker population at a facility. Upon completion of a random test, a worker is immediately eligible for another test. The RegDoc describes these two categories of testing as follows:
5.1 Pre-placement alcohol and drug testing
Licensees shall require all candidates who succeed in progressing through all the previous stages of a job competition to a safety-critical position (see section 4.1, bullets 1 and 2) to submit to alcohol and drug testing as a condition of placement. Incumbent workers transferring into a safety-critical position (see section 4.1, bullets 1 and 2) shall also be required to submit to a pre-placement alcohol and drug test.
5.5 Random alcohol and drug testing
Licensees shall require all workers holding safety-critical positions (see section 4.1, bullets 1 and 2) to submit to random alcohol and drug testing. Licensees’ sampling process used to select these workers for random testing shall ensure that the number of random tests performed at least every 12 months is equal to at least 25 percent of the applicable worker population.
Licensees shall develop procedures and practices to ensure that random testing is administered in a manner that provides reasonable assurance that individuals are unable to predict when specimens will be collected.
The following shall be addressed for the implementation and conduct of random testing:
1. Ensure that all individuals in the population subject to testing have an equal probability of being selected and tested.
2. Require that individuals who are offsite when selected for testing, or who are onsite and are not reasonably available for testing when selected, be tested at the earliest reasonable opportunity when both the donor and specimen collectors are available to collect specimens for testing and without prior notification to the individual that he or she has been selected for testing.
3. Provide that an individual completing a test is immediately eligible for another unannounced test.
(c) Safety-critical positions
[24] The RegDoc recognizes two categories of safety-critical employees. The first are employees certified under the Class 1 Regulations, excluding certified health physicists. These employees have a direct impact on a facility’s nuclear safety and security. The positions encompassed by this category are reactor operators, “unit 0” operators (who operate monitoring panels in plants with multiple nuclear reactors) and control room and plant shift supervisors [Operators].
[25] The second category of safety-critical workers are the subset of security officers referred to as the onsite nuclear response force [NRF]. These officers are armed and stationed at high-security sites.
(d) The drug testing process
[26] The RegDoc requires that collection and testing be carried out by independent collectors and accredited labs. A facility may choose whether to implement urinalysis, oral fluid testing or both.
[27] Laboratory confirmed positive, adulterated and/or invalid test results are not provided directly to the Employers. Instead, they are reviewed by a qualified Medical Review Officer [MRO] engaged by the independent collector who will confidentially discuss the result with the worker to determine whether a test result could have resulted from the legitimate use of medications. The worker is given the opportunity to explain the finding to the MRO, who then determines whether the result will be reported to the Licensee as a negative, a verified positive, or a tampered or substituted specimen result.
[28] Provision is made for the collection of a secondary sample or the splitting of samples. This allows workers, within 72 hours of receiving a verified positive test, to request the testing of the split/secondary sample by an accredited laboratory of the worker’s choice. If the second confirmed test is negative, it prevails.
[29] The RegDoc establishes cut-off levels for alcohol and drugs, including cannabis. A positive drug test is one in which the laboratory analysis determines that cut-off levels have been met or exceeded following a review and report by the MRO.
[30] The RegDoc does not mandate that workers who have a verified positive test be terminated or disciplined. Instead, the RegDoc requires that these employees be removed from their positions and referred for a mandatory substance abuse evaluation.
C. Procedural History
[31] The Employers have developed a joint policy allowing for the operationalization of the RegDoc. The joint policy, entitled Fitness for Duty: Policy on Managing Alcohol and Drug Use [Employers’ Policy], provides for drug testing of safety-critical and safety-sensitive workers as required by the RegDoc but goes further and imposes certain drug and alcohol testing on classes of employees beyond those captured by the RegDoc. The Unions have grieved the Employers’ Policy.
[32] The grievances have been referred to arbitration. The parties, with the Respondent Attorney General of Canada [AGC] intervening, appeared in front of Arbitrator Eli Gedalof in June 2021 upon the Unions’ requests for interim relief, including requests that the implementation of the pre-placement and random testing requirements in the Employers’ Policy be stayed pending the resolution of the Unions’ grievances.
D. The Arbitrator’s decision
[33] In his July 2021 award, Arbitrator Gedalof agreed with the position advanced by the AGC, finding he lacked jurisdiction to award interim relief to the Unions with respect to any RegDoc requirement. He directed the Unions to the Federal Court. However, Arbitrator Gedalof did stay the “implementation of the Employers’ Policy as it relates to For-Cause Reasonable Grounds and Post-Incident Alcohol and Drug Testing for Nuclear Workers who do not fall within the scope of the RegDoc.” (Power Workers’ Union et al v Ontario Power Generation et al, 2021 CanLII 65284 (ON LA) at para 130 [Power Workers’ Union])
[34] In considering the request for a stay of the drug and alcohol testing of workers not falling within the scope of the RegDoc, Arbitrator Gedalof applied the three-part test for the granting of interim relief.
[35] The parties agreed that there was a serious issue to be tried. In considering irreparable harm, Arbitrator Gedalof found that an individual’s privacy interest in their bodily samples and the personal information those samples may contain fell at the high end of the privacy spectrum and that the potential harm resulting from testing later found impermissible would be irreparable. Arbitrator Gedalof also found that the balance of convenience lay with granting the stay because the Employers failed to provide evidence demonstrating that significant harm would result from an inability to implement testing pending a determination on the merits of the case.
III. The Evidence on this Application
[36] The records filed on this Motion are extensive. The Applicants have filed nine affidavits with exhibits that exceed 4000 pages. The Employers have filed 11 affidavits with exhibits exceeding 3000 pages and the Attorney General of Canada has filed a single affidavit with exhibits that exceed 1900 pages.
[37] Although the evidence is considerable, there appears to be little in dispute factually. All parties agree that safety is of paramount importance in the operation of nuclear facilities and that a culture of safety permeates the work culture within the facilities operated by the Employers. There is no substantial disagreement in respect of the nature of the work done by safety-critical employees, the potential serious consequences that may result in the event of an incident relating to the performance of that work or, more broadly, the requirement for the close monitoring of employees in the performance of their duties and the need for a robust fitness for duty policy.
[38] I note that much of the affidavit evidence is repetitive in that the parties have included affidavit evidence addressing each of the two categories of safety-critical workers from each of the Employers. As would be expected, details of this evidence differ from employer to employer but it is generally consistent in all significant aspects. I will therefore provide only a generalized summary of the evidence to provide some context for the analysis that will follow.
[39] The Applicants’ evidence describes the current fitness for duty policies and practices in place that allow fitness for duty concerns, including any instance of suspected impairment, to be identified and acted upon. Both Operators and NRF members undergo rigorous security measures that allow security personnel to observe safety-critical employees as they arrive at, and enter the workplace and have shift handover protocols that include extensive handover briefings. Both have high supervisor to employee ratios and are required to generally work in teams. Operators engage in pre-job briefings before performing any non-routine tasks. NRF members attend mandatory pre-shift crew briefings and are monitored during the loading and unloading of all weapons systems. In addition, management personnel at all facilities undergo a training program that teaches them to identify signs of safety-significant behaviour changes, including those associated with substance impairment. The evidence notes the availability and promotion of employee assistance programs that recognize substance abuse as a disorder to be treated with the employee accommodated. These programs contribute to destigmatization and encourage proactive disclosure by employees of issues, including substance abuse, that may impact their fitness for duty.
[40] The Applicants’ evidence also describes the impact of the RegDoc. The evidence indicates impairment in the workplace is inconsistent with the way safety-critical personnel view and do their jobs. The suggestion that random testing is needed to deter employees from coming to work in an impaired state is insulting in light of the commitment these employees have to the workplace safety of themselves and their co-workers. The view is expressed that employees will experience fear and anxiety due to the possibility of a false positive that will require them to establish they were not impaired and this may change behaviours outside the workplace with employees avoiding food products or even over the counter and prescription medicines. The testing process will also compel disclosure of personal medical information to persons not of an employee’s choosing in the event an employee seeks to explain a positive result.
[41] The Applicants’ evidence includes an expert report from Dr. Olaf Drummer, a Professor and Forensic Toxicology Consultant Specialist. Dr. Drummer’s affidavit expressed his view that urine or oral fluid testing and cut-off concentration thresholds, in the absence of evidence of behaviour and/or performance deficits, cannot accurately assess the level of a person’s impairment because of the numerous factors that influence the concentration of drug and drug metabolites in the human body. This is particularly true for urinalysis. Dr. Drummer also attested that there is no worldwide consensus on the appropriate cut-off thresholds for most drugs, that thresholds are more commonly designed to detect prior use of drugs rather than current impairment and that the RegDoc’s cut-off limit for oral fluid testing of cannabis is low and may result in non-negative results for much longer than the period of acute impairment. Finally, Dr. Drummer expressed that benzodiazepines should be removed from the RegDoc testing regime because of the particular difficulties involved in screening for this class of drug.
[42] The Employers’ evidence establishes that there is a rigorous process in place for workers aspiring to either category of safety-critical positions. A worker must have two years of plant experience or a minimum of two years of education in a science or technology field before undergoing a three-year training process to become an Operator. The evidence establishes that there is a high failure rate for this program across all facilities. At New Brunswick Power Corporation, for instance, approximately 40% of candidates do not successfully complete the certification process. Workers aspiring to Operator positions also undergo medical examinations prior to hiring which include a review of drug and alcohol use and tailored fit tests regarding the safe use of their equipment.
[43] A prospective NRF member participates in a three-month Basic Tactical Operator Course. An NRF member must also obtain medical, physical and psychological certificates stating they are fit for duty. In addition, they undergo thorough background checks. Other aspects of the NRF training plan and minimum standards are classified, but it is clear that NRF candidates are closely scrutinized and highly trained.
[44] The Employers’ evidence also establishes that Canadian Nuclear Laboratories has had a drug and alcohol testing policy in place since 2014. This policy includes reasonable grounds, post-incident and follow-up testing for all workers and remains operative except where it has been superseded by the RegDog in respect of testing for safety-sensitive and safety-critical workers. The CRNSOA has not grieved this policy.
[45] Finally, the Employers’ evidence includes two expert reports. One, from a physician and MRO, explained that urinalysis and oral fluid testing are not true tests of impairment but that they will aid in determining the likely risk of impairment. She stated that the threshold cut-offs established by the RegDoc are consistent with drug and alcohol testing thresholds in most other safety-sensitive and safety-critical workplaces in Canada and that the thresholds set for cannabinoids and benzodiazepines are appropriate. The second expert report, written by a toxicologist, stated that supervisors often ignore or do not notice impairment in their workers and that the RegDoc protocols, including the cut-off thresholds, are well-designed and comprehensive.
[46] The AGC’s evidence includes third-party reports commissioned during the development of the RegDoc. These reports concluded that the fitness for duty programs at Class 1 nuclear facilities varied and stated that supervisory and peer observations are not always reliable methods of recognizing impairment. The AGC’s evidence also explains the urinalysis testing method required by the RegDoc was chosen for its efficacy and that oral fluid testing was chosen as a second method because the short window of drug detection monitored by oral fluid testing more closely correlated to the window of drug impairment. The AGC’s evidence also clarifies the reasoning behind the chosen “cut-off” values above which would constitute a positive result. The AGC’s evidence states that the threshold levels were chosen to target the length of time of acute impairment.
[47] The AGC’s evidence also establishes that the Employers’ fitness for duty programs prior to the development of the RegDoc were inconsistent with international criteria and expectations. The International Atomic Energy Agency has advised that Canada implement random drug and alcohol testing for persons entering secure areas to ensure they can safely carry out their duties. The United States and Finland have regulatory requirements regarding the random drug and alcohol testing of nuclear power plant workers. This testing also takes places at nuclear power plants in the United Kingdom and Sweden, although it is not a regulatory requirement.
IV. Preliminary Issue – Admissibility of the Hunter Affidavit
[48] As a preliminary matter, in written submissions the Applicants argued that the affidavit of Lynda Hunter, a Human and Organizational Factors Specialist with the CNSC and filed by the AGC, is inadmissible. The Unions submitted the apparent purpose of the affidavit is to provide supplementary reasons for the CNSC’s adoption of the RegDoc.
[49] The AGC submits there is no basis for the Applicants’ objection. The information contained in the Hunter affidavit provides important context and background information on the CNSC’s development and approval of the RegDoc. This information is in the Certified Tribunal Record or otherwise publicly accessible.
[50] In seeking an injunction or a stay, an applicant engages issues relating to the public interest and the harm that might be occasioned in either granting or refusing the relief sought. These issues go beyond those raised in the underlying proceeding and evidence relevant to the issues is admissible and to be considered by the motions judge in assessing whether the relief sought is to be granted (Unifor, Local 707A v Suncor Energy Inc, 2018 ABCA 75 at paras 9 and 10 [Suncor 2018]; also see the reasons of Slatter, JA in dissent at paras 28 and 29 where it is stated the “the chambers judge has an obligation to carefully consider all the evidence on the record with respect to the [irreparable haram and balance of convenience] branches of the test”).
[51] In oral submissions, the Applicants advised that their concerns with the affidavit were significantly diminished after having had the opportunity to review the Respondents’ submissions. Applicants’ counsel did submit that the affiant, as a member of the CNSC staff, is not the statutory decision maker. As such, any concerns she describes in relation to the development or implementation of the RegDoc must be considered in that light and the Court should be mindful of this in relying on the affidavit.
[52] The Applicants’ objection having essentially been withdrawn, I have considered and relied on the Hunter affidavit. In doing so, I have been mindful of the Applicants’ concern.
V. The Test and Guiding Principles
[53] As recalled by Justice John Norris in Gray v Canada (Attorney General), 2020 FC 1037 [Gray], an interlocutory injunction is an extraordinary and equitable form of relief. The decision to grant or refuse the relief is discretionary and must be made having regard to all the relevant circumstances (at para 49, citing R v Canadian Broadcasting Corp, 2018 SCC 5 at para 27).
[54] Interlocutory relief seeks to preserve the subject matter of the underlying litigation so that effective relief will be available in the event the applicant is successful (Gray at para 48, citing Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24 [Equustek]).
[55] To obtain interlocutory relief an applicant must demonstrate (1) there is a serious issue to be tried; (2) irreparable harm will result if the injunction is not granted; and (3) the balance of convenience favours the applicant (RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald]; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110 [Metropolitan Stores]).
[56] The applicant has the burden of satisfying each branch of the test. However, the branches are not to be treated as individual and watertight silos. Strength on one part of the test may compensate weakness on another (Bell Canada v 1326030 Ontario Inc, 2016 FC 612 at para 30). The fundamental question to be addressed is whether the granting of the injunction is just and equitable in all of the circumstances (Equustek at para 25).
[57] The balance of convenience branch of the test best represents this balancing of equities and has been described as a determination of which of the parties will suffer the greater harm from the granting or refusal of the injunction (Metropolitan Stores at p. 129). Framed otherwise, the question is: Is it more just and equitable for the moving party or the responding party to bear the risk that the outcome of the underlying litigation will not accord with the outcome on the interlocutory motion? (Gray at para 54, citing Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14).
VI. Analysis
A. The Applicants have demonstrated a serious issue
[58] An individual seeking interlocutory relief is required to satisfy the court that “the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried” (RJR-MacDonald at para 49, citing American Cyanamid Co v Ethicon Ltd, [1975] A.C. 396).
[59] This low threshold recognizes that it is generally not appropriate to decide complex factual and legal issues based upon the limited evidence available in an interlocutory proceeding. This is particularly so where issues relating to the fundamental rights and freedoms protected by the Charter are raised (RJR-MacDonald at paras 50 and 53).
[60] Where satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third branches of the test, even if of the opinion that the plaintiff is unlikely to succeed at trial.
[61] The Supreme Court of Canada has identified two exceptions to the general rule that a motions judge should not engage in an extensive consideration of the merits. Neither of those exceptions arise in this case (RJR-MacDonald at para 56).
[62] The Applicants argue the CNSC-directed random and pre-placement testing in the workplace involves a search and seizure. They submit that the CNSC does not have the authority to authorize the search and seizure of bodily substances for the purposes of random or pre-placement alcohol and drug testing and that in any event the search authorized by the RegDoc is unreasonable.
[63] They submit the underlying Application raises a number of serious issues encompassing sections 7, 8 and 15 of the Charter and the arbitral jurisprudence in respect of pre-placement and random testing:
Relying on arbitral jurisprudence, the Applicants submit that random testing has been overwhelming rejected in workplaces with a recognition that such testing may only be justified in the rarest of cases (Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc, 2012 ABQB 627, paras 27-33 [Suncor 2012 #1], affirmed 2012 ABCA 373, para 5 [Suncor 2012 #2]; Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc, 2012 ABCA 307, paras 25-32 [Suncor 2012 #3]; Unifor, Local 707A v Suncor Energy Inc, 2017 ABQB 752, paras 51-56 [Suncor 2017]; Office and Professional Employees International Union v Cougar Helicopters, 2019 CanLII 66726 (NL LA), para 21 [Cougar Helicopters]; Teck Coal Ltd and USW, Local 9346, Re, 2013 CarswellBC 3772 (BC LA), para 39, affirmed 2014 CarswellBC 421 (BC LRB) [Teck Coal]; TTC, Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2017 ONSC 2078, para 29 [TTC]). They submit that whether the facts in this matter disclose one of those rare instances, particularly in the absence of a proven workplace problem, raises a serious issue.
The Applicants submit pre-placement testing does not test for or detect impairment in the workplace. They note the Respondents do not appear to dispute this but instead take the position, relying on the evidence of Dr. Snider-Adler, that such testing is intended to deter those who use recreational substances from engaging in safety-critical work. The Applicants submit that whether or not such deterrence is reasonable and whether pre-placement testing is a reasonable means of achieving this deterrence are also serious issues.
The Applicants submit that government-imposed testing regimes that do not require a reasonable and individualized basis for the conduct of a drug and alcohol test have been held to be contrary to sections 7 and 8 of the Charter (Jackson v Joyceville Penitentiary, [1990] 3 FC 55, paras 82, 96-97; Dion c Canada (Procureur général), 1986 CarswellQue 1362 (SC), paras 35, 38-40, 77. See also R v Dyment, [1988] 2 SCR 417, paras 34-35; Gillies (Litigation Guardian of) v Toronto District School Board, 2015 ONSC 1038, paras 84-89, 122-125; R v Shoker, 2006 SCC 44, para 23; Royer c Canada (Procureur général), 2003 CAF 25, para 17; R v Campbell, 2019 ONCA 258, paras 31-33; Fieldhouse v Canada, 1994 CarswellBC 2219 (SC), para 62 [Fieldhouse]).
They further submit that the absence of an individualized approach to the random and pre-placement testing regimes engages Charter section 15’s equality and non-discrimination guarantees which in turn dovetail with protections against discrimination under the Human Rights legislation.
[64] In response, the AGC concedes that the Applicants’ claim is neither frivolous nor vexatious but submits the likelihood of success on the underlying Application is low. The Employers have adopted the AGC’s position on serious issue.
[65] In advancing its view that the Applicants’ likelihood of success is low, the Attorney General argues:
The arbitral jurisprudence is of little relevance to the judicial review of the actions of a federal regulator carrying out its mandate.
That, in any event, the arbitral jurisprudence relied on by the Applicants recognizes the safety interests of the workplace may justify random testing in the absence of prior drug or alcohol related issues (Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 45 [Irving Pulp]).
Safety-critical workers have a significantly diminished expectation of privacy given the evidence establishing they are subject to numerous intrusive procedures in furtherance of workplace safety, including regular urinalysis testing to monitor radiation exposure.
The RegDoc is reasonable, as it is authorized by law, that the law itself is reasonable and the impugned testing is conducted in a reasonable manner.
The Applicants’ sections 15 and 7 arguments are deficient and that in the event a court were persuaded that the RegDoc infringes section 7, 8 and/or 15 of the Charter, the infringement would be saved under section 1. Ensuring the safety of Canada’s nuclear facilities is a pressing and substantial objective.
[66] In oral submissions, counsel for the Applicants strongly disagreed with the AGC’s characterization of the issues raised as having a low likelihood of success. However, the Applicants submitted that they do not rely on the strength of the serious issues raised to bolster their position on either irreparable harm or balance of convenience. They have therefore not pursued their disagreement with the AGC’s characterization of the strength of the issues raised.
[67] On the record before me, and without reaching a final determination on any of the issues, I am satisfied that the issues raised by the Applicants are neither frivolous nor vexatious. I find the Applicants have satisfied the first branch of the