Power Workers’ Union v. Canada (Attorney General)

Power Workers’ Union v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-06-06
Neutral citation
2023 FC 793
File numbers
T-1222-21
Notes
Digest
A correction was made on June 5, 2024
Decision Content
Date: 20230606
Docket: T-1222-21
Citation: 2023 FC 793
Toronto, Ontario, June 6, 2023
PRESENT: Mr. Justice Diner
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 STEWART AND THOMAS SHIELDS
Applicants
and
ATTORNEY GENERAL OF CANADA, ONTARIO POWER GENERATION, BRUCE POWER, NEW BRUNSWICK POWER CORPORATION AND CANADIAN NUCLEAR LABORATORIES
Respondents
Table of Contents
I. Overview 3
II. Background 3
A. The development of the RegDoc 5
III. Issues and Standard of Review 9
IV. Analysis 19
A. Applicability of the Charter 20
B. The pre-placement and random testing provisions of the RegDoc do not infringe section 8 of the Charter 23
Step 1: The pre-placement and random testing provisions engage section 8 27
Step 2: The pre-placement and random testing provisions in the RegDoc are authorized by law 35
Step 3: The pre-placement and random testing provisions are reasonable 38
C. The pre-placement and random testing provisions of the RegDoc do not infringe section 7 of the Charter 54
D. The pre-placement and random testing provisions of the RegDoc do not infringe section 15 of the Charter 59
E. The impugned RegDoc provisions are reasonable under administrative law 65
(1) There is a statutory basis for the random testing provisions to be in the RegDoc 67
(2) The Commission provided adequate reasons for the RegDoc 70
V. Costs 74
VI. Conclusion 74
JUDGMENT AND REASONS
I. Overview
[1] A decade ago, the Canadian Nuclear Safety Commission [CNSC] began a process to implement pre-employment and random alcohol and drug testing for the most sensitive positions in Canada’s nuclear power plants. The CNSC engaged in various broad-based, public stakeholder consultations to refine the policy over the years. It released a final draft in 2020, requiring Class 1 high-security nuclear sites to implement random and pre-placement drug and alcohol testing for Safety-Critical Workers.
[2] The Applicants – six individuals employed in various Safety-Critical positions at Canada’s Class 1 high security nuclear plants, and their Unions – now bring this Application, a judicial review challenging the CNSC’s pre-placement and random testing provisions of the policy as being unconstitutional in several facets.
[3] On January 21, 2022, the Applicants obtained an injunction from this Court staying the implementation of the impugned provisions of the policy, pending the final disposition of this Application for Judicial Review (see Power Workers Union v Canada (Attorney General), 2022 FC 73 [Power Workers 2022]).
[4] For the reasons set out below, this judicial review will be dismissed.
II. Background
[5] Parliament established the CNSC through the Nuclear Safety and Control Act, SC 1997, c 9 [Act] to regulate the nuclear industry in the public interest. The objects of the CNSC are set out in section 9 of the Act (relevant sections are reproduced at Annex A to these Reasons). All nuclear facilities in Canada must be licensed by the CNSC [Licensees].
[6] The CNSC includes (i) staff working within the regulatory body; and (ii) a quasi-judicial tribunal and court of record [the “Commission”]. The Commission’s functions include rendering decisions to adopt policies on recommendation from staff, including the one challenged in this Application.
[7] The Respondents are comprised of the Attorney General of Canada [AGC] and all the licensed high-security Class 1 nuclear facilities regulated by the CNSC, namely Bruce Power L.P., Ontario Power Generation Inc., Canadian Nuclear Laboratories Ltd., and New Brunswick Power Corporation [together, the “Employers”]. The Employers operate Canada’s 19 nuclear fission technology reactors and provide most of Ontario’s energy, as well as a significant quantity of New Brunswick’s electricity. They employ the workers impacted by the RegDoc (defined below).
[8] The Applicants comprise unions representing workers at CNSC regulated nuclear facilities, namely 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, [together, the “Unions”] and six affected workers: Chris Damant, Paul Catahno, Thomas Shields, Matthew Stewart, Scott Lampman and Greg MacLeod. The Unions represent the workers in Safety-Critical positions [Safety-Critical Workers] affected by the pre-placement and random testing provisions of the policy in question, namely REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3 [RegDoc] (reproduced at Annex B to these Reasons).
[9] The definition of Safety-Critical positions has evolved with the development of the RegDoc, and now consists of (i) workers certified under subsection 9(2) of the Class 1 Nuclear Facilities Regulations, SOR/2000-204 [Class 1 Regulations], excluding certified health physicists; and (ii) on-site Nuclear Response Force workers, as defined in the final version of the RegDoc, which is the subject of this Application. Workers certified under the Class 1 Regulations include Authorized Nuclear Officers and Unit Control Room Operators. In sum, the workers impacted by the RegDoc’s pre-placement and random testing provisions are a subset of highly trained, armed, nuclear security officers, who are responsible for maintaining the security of nuclear facilities. By way of reference to other sensitive positions, the fire brigade and emergency response team members are not considered “Safety-Critical” positions, but are rather classified as “safety-sensitive” positions.
A. The development of the RegDoc
[10] Regulatory documents form a critical component of the CNSC’s licencing and compliance framework. They typically contain two types of information for Licensees: (i) requirements; and (ii) guidance. Compliance with the regulatory document requirements is mandatory for Licensees that use nuclear substances, operate nuclear facilities or conduct other types of licensed activities. Regulatory document guidance, on the other hand, supplements the requirements. Licensees are expected to review and consider a regulatory document’s guidance, and provide an explanation to the CNSC should they choose not to follow it.
[11] In 2012, CNSC staff began public consultation to develop a regulatory document for fitness for duty, which included pre-placement and random drug and alcohol testing. This public consultation resulted in the publication of a discussion paper, including a summary of comments received from stakeholders on the draft discussion paper (What We Heard Report – DIS-12-03, published in November 2013). In November 2015, the CNSC issued and published a first draft of the RegDoc for another round of consultation from relevant stakeholders.
[12] Many stakeholders, including the Applicants, reiterated objections they had initially raised in response to the draft discussion paper, including their claims of: (i) the unclear statutory basis for imposing testing; (ii) infringement of sections 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 [Charter]; and (iii) inconsistencies between the arbitral case law and the proposed testing.
[13] In August 2017, CNSC staff issued a second draft of the RegDoc, restricting the scope of pre-placement and random testing to Safety-Critical Workers. This version also narrowed the definition of a Safety-Critical Worker (see paragraph 9 of these Reasons), which remains the definition in the final version of the RegDoc.
[14] In terms of the feedback received during the RegDoc’s development, CNSC staff presented to the Commission the second draft of the RegDoc, at a public meeting in August 2017. The Minutes of that meeting reflect that concerns were raised about the pre-placement and random testing provisions of the RegDoc, and that the Commission directed staff to amend the RegDoc and send it back for re-consideration and approval.
[15] In an October 2017 closed meeting, CNSC staff presented a third draft of the RegDoc to the Commission, with recommended amendments. Upon consideration of the third draft, the Commission approved the current version of the RegDoc for publication and use.
[16] The impugned provisions of the RegDoc are sections 5.1 (pre-placement testing) and 5.5 (random testing). These provisions require Licensees to implement pre-placement and random drug and alcohol testing for Safety-Critical Workers. CNSC estimates that out of approximately 12,000 workers across nuclear facilities, under 10% are Safety-Critical.
[17] Section 5.1 requires Licensees to conduct pre-placement testing for all successful candidates who apply for a Safety-Critical position at a high-security nuclear facility. Pre-placement testing must be implemented for both new and incumbent workers. The RegDoc indicates that pre-placement testing is not a screening tool and should only be administered once a candidate has met all other qualifications necessary.
[18] Section 5.5 requires Licensees to have all Safety-Critical Workers submit to random drug and alcohol testing, as distinct from section 5.1 pre-placement testing. At least 25% of the Safety-Critical Worker population of all facilities must be tested randomly every year.
[19] Under section 6.1 of the RegDoc, Licensees must test for alcohol through the collection of breath samples using approved instruments defined at section 2 of the Approved Breath Analysis Instruments Order, SI/85-201. The testing is to be administered by qualified technicians who are independent from workgroups subject to testing.
[20] Section 6.2 of the RegDoc, indicates that for drug testing, Licensees can choose to implement laboratory urine testing, laboratory oral fluid testing, or a combination of both. Licensees must retain and utilize the services of an accredited laboratory to analyze and report the results. For urine testing, the laboratory used must be accredited by the Substance Abuse and Mental Health Services Administration [SAMHSA]. For oral fluid testing, the laboratory used must be accredited by SAMHSA or meet the General Requirements for the Competence of Testing and Calibration Laboratories, ISO/IEC 17025.
[21] The RegDoc establishes threshold values, or cut-off levels, for the amount of a substance that must be found in a sample to constitute a positive test result for both alcohol testing and drug testing. The positive results from laboratory tests are sent to a medical review officer who reviews, interprets and verifies the laboratory tests results for each drug class as specified in the RegDoc. When faced with a positive test result, the medical review officer must provide the worker an opportunity to explain any alternative reasons for such result. The medical review officer will only report verified positive test results to Employers.
[22] It should be noted that the pre-placement and random testing provisions of the RegDoc have not yet been implemented. The RegDoc went into effect on January 21, 2021. The November 2020 Meeting Minutes of the CNSC reflect that the Licensees would be required to implement pre-placement testing measures within six months (by July 22, 2021), and random testing measures within twelve months (by January 22, 2022). However, in early 2022, the Applicants successfully brought a motion for an injunction before the Court. Justice Gleeson granted the injunctive relief sought, staying the implementation of sections 5.1 (pre-placement testing) and 5.5 (random testing) of the RegDoc until the final disposition of this Application (see: Power Workers 2022 at paras 5-8).
[23] As a result, the testing mechanism contemplated under the impugned sections of the RegDoc has yet to be administered. Courts are encouraged to proceed with caution when considering the constitutionality of a provision or legislative scheme in the absence of a factual matrix (MacKay v Manitoba, [1989] 2 SCR 357 at 366 [MacKay]; Ernst v Alberta Energy Regulator, 2017 SCC 1 at para 22 [Ernst]).
III. Issues and Standard of Review
[24] Before setting out the issues before me, I note that in the Notice of Constitutional Question, the Applicants assert that the pre-placement and random testing provisions of the RegDoc are “invalid” under section 1 of the Charter. In the Notice of Application for Judicial Review, the Applicants seek a declaration that sections 5.1 and 5.5 of the RegDoc are contrary to sections 7, 8, and 15 of the Charter and are of no force and effect. The Notice of Application also seeks an order quashing the CNSC’s decision to adopt the provisions.
[25] Thus, this case is distinct from many of the administrative law cases challenging delegated legislation, in that the Applicants do not challenge the RegDoc as being ultra vires its enabling statute. In other words, they do not argue that the RegDoc is invalid because the CNSC exceeded the powers delegated to it by Parliament in the Act. Nor do the Applicants impugn the jurisdiction or vires of the Act writ large, to argue that the Act is contrary to the division of powers, the Charter, or section 35 of the Constitution Act.
[26] Instead, the Applicants submit that two specific elements of the RegDoc, namely the (i) pre-placement and (ii) random testing measures (sections 5.1 and 5.5), infringe several sections of the Charter. They contend that the CSNC’s decision to adopt these measures was unreasonable. In other words, they say that while sections 5.1 and 5.5 must be struck, the remainder of the structure of the RegDoc may stand.
[27] The Applicants argue that the RegDoc’s two impugned sections should fall for two reasons. First, they contend that its pre-placement and random testing requirements violate sections 7, 8, and 15 of the Charter, and are not justified under section 1. Second, they posit, in the alternative, that CNSC’s decision to adopt the RegDoc was unreasonable on administrative law grounds.
[28] In determining the applicable standard of review in this case, it is important to understand how the issues were framed. In making their case, the Applicants pivoted between challenging the elements of the RegDoc as if they were seeking to invalidate provisions of a statute, and impugning the CNSC’s decision to adopt a RegDoc that includes pre-placement and random testing requirements.
[29] On the one hand, for the purposes of their administrative law arguments, they dress the RegDoc in the garb of an administrative decision, attacking it for its unreasonableness. On the other, for the purposes of their constitutional arguments, they impugn it as a form of regulation or legislative measure that prescribes a limit on a Charter right.
[30] A similar blending of the classification of the RegDoc was also evident in the Applicants’ written submissions. For instance, at paragraph 42 of their Factum, the Applicants state, “the RegDoc constitutes a “law” which prescribes a limit on Charter rights […] Non-statutory binding rules that establish obligations of general rather than specific application, and are sufficiently accessible and precise, qualify as “law” that prescribe a limit on a Charter right.”
[31] Later, the Applicants also submit that the RegDoc purports to be a regulation and that the Commission improperly adopted it through the informal vehicle of a regulatory document, rather than having it go through the more rigorous procedure required by regulatory amendments, as further discussed in Section B (Step 2) below.
[32] However, at the outset of their Factum, at paragraph 1, the Applicants state they oppose the CNSC’s decision to impose the RegDoc’s requirements, and in terms of a remedy, request this Court quash the CNSC’s decision to adopt the pre-placement and random testing elements of the RegDoc because those two elements are unconstitutional.
[33] In the alternative, the Applicants request that the Court remit the two “elements” of the RegDoc back to the CNSC for re-determination. During the hearing, when asked to delineate what exactly they were claiming violated Charter grounds, Counsel for the Applicants clarified that they were seeking a declaration of invalidity of sections 5.1 and 5.5 and for the Court to strike these impugned provisions from the RegDoc. Discussion of the remedy was mentioned at various points of the hearing. One such instance occurred at 02:43:00 to 02:45:00 of the audio recording of Day 1. Again, at no point did the Applicants request that the Court strike out the validity of the entire RegDoc.
[34] The Respondents agree with the Applicants that the constitutionality of the testing measures should be reviewed by adjudicating each Charter right and applying the framework in R v Oakes, 1986 CanLII 46 (SCC), 1 SCR 103 [Oakes] under section 1. The Parties are also in agreement that the Court ought not to apply the balancing framework for the review of discretionary administrative decisions set out in Doré v Barreau du Québec, 2012 SCC 12 at paras 37, 39 [Doré] (see also: Loyola High School v Quebec (Attorney General), 2015 SCC 12 at paras 39-42 [Loyola]; Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 111 [Trinity Western]). The Parties submitted in their written materials – and reiterated at the hearing – that the Court must not use the Charter values paradigm in analysing the RegDoc, because the Applicants are not challenging the CSNC’s underlying decision to adopt the entire RegDoc, rather only two sections of it.
[35] While the Parties agree on the method for how the Court should approach the Charter questions raised by the Applicants, namely under the Oakes approach, they split on the esoteric question of whether correctness, or no standard of review applies. They agree that reasonableness applies to the administrative law question of whether the CNSC’s decision to adopt the RegDoc was reasonable.
[36] The Applicants rely on Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 at paras 36-37 [Elementary Teachers] to argue that the correctness standard applies in their Charter arguments. In Elementary Teachers, the Ontario Court of Appeal held that an arbitrator’s decision was subject to a correctness standard of review on the question of law of whether the grievor had a reasonable expectation of privacy in their workplace laptop (Elementary Teachers at para 37 citing to R v Shepherd, 2009 SCC 35 at para 20). Elementary Teachers has since been appealed and is now before the Supreme Court of Canada [SCC] (see: York Region District School Board v Elementary Teachers’ Federation of Ontario, 2023 CanLII 19753 (SCC)).
[37] The Respondents, by contrast, contend that no standard of review applies to the issue of whether the testing requirements infringe the Charter, because the Applicants do not seek to review an administrative decision. The Respondents state in their written submissions that the application of a correctness standard is “fundamentally at odds with the Oakes test”. They argue that the Applicants seek to strike out provisions of the RegDoc, which in their view, is a policy “prescribed by law” that falls within the meaning of section 1 of the Charter. Relying on Greater Vancouver Transportation Authority v Canadian Federation of Students British Columbia Component, 2009 SCC 31 at paragraph 64 [Greater Vancouver Transportation Authority], they say the RegDoc qualifies as a “law” because it establishes a series of obligations that must be adhered to by all Licensees.
[38] I am not convinced by this distinction that the correctness standard is fundamentally at odds with the Oakes framework since, as recently noted by Justice Favel in McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 at paragraph 54 [Whitefish], “[t]his distinction is more academic than practical, as “no standard of review” is the functional equivalent of a “correctness review””. Put simply, here the question is whether in its application, the RegDoc breaches the Charter.
[39] The Respondents also rely on Reference re Marine Transportation Security Regulations, 2009 FCA 234 [Marine Reference] and Canada (Union of Correctional Officers) v Canada (Attorney General), 2019 FCA 212 [Correctional Officers]. These two Federal Court of Appeal [FCA] decisions dealt with Charter challenges to the validity of federal regulations.
[40] In Marine Reference, the AGC brought a reference to the Court under subsection 18.3(2) of the Federal Courts Act, RSC, 1985, c F-7 to determine their constitutional validity. As such, there was no administrative decision at play and the Court did not consider whether a standard of review was applicable.
[41] Correctional Officers, which was decided in 2019, involved a judicial review application to the Treasury Board’s decision to adopt a standard for financial security screening procedures of correctional officers, and a directive by the Correctional Service of Canada implementing it. The applicants in Correctional Officers argued that the enhanced financial screening procedures infringed the section 8 Charter rights of employees at these correctional facilities.
[42] The FCA rejected the application judge’s determination that the reasonableness standard applied in Correctional Officers, finding instead that the correctness standard applied. The Court went on to explain that Doré was not applicable because the application for judicial review “is more akin to a challenge of the constitutionality of a legislative or regulatory provision” (Correctional Officers at para 21):
[21] […] the appellant is not challenging an individual administrative decision based on a provision of the 2014 Standard or the Commissioner’s Directive that was interpreted by a decision maker. Instead, the appellant is challenging their adoption in their entirety. Thus, the Union is attacking head on the constitutionality of the 2014 Standard and the Commissioner’s Directive themselves. It follows that the analytical framework described in Doré does not apply and that it is therefore inappropriate to apply the reasonableness standard. The appellant’s application for judicial review is more akin to a challenge of the constitutionality of a legislative or regulatory provision. Such a challenge is typically subject to the correctness standard of review (Dunsmuir, at paragraph 58).
[Emphasis in Original]
[43] In many respects, Correctional Officers is on point in that the Applicants here are not challenging a decision-maker’s interpretation of the document in question. In both cases, they challenge the adoption of financial screening and drug testing (respectively) measures on Charter grounds.
[44] A few months after the release of Correctional Officers, the SCC released Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. The decision in Correctional Officers, although decided by the FCA just before Vavilov, is still good law, having been cited by Chief Justice Crampton post-Vavilov in Spencer v Canada (Health), 2021 FC 62 [Spencer].
[45] In Spencer, Chief Justice Crampton dismissed a challenge to the validity of certain federal quarantine measures affecting air travellers. The measures were part of the federal government’s response to the COVID-19 global pandemic and were implemented by way of a series of Orders in Council. On appeal, the FCA held that the challenge was moot since the orders had been repealed (Spencer v Canada (Attorney General), 2023 FCA 8).
[46] At paragraph 64 of Spencer, Chief Justice Crampton cites Correctional Officers, among other pre-Vavilov cases to find that “[t]he standard applicable to the Court’s review of the issues that have been raised with respect to the Charter, the Constitution Act, 1867 and the Canadian Bill of Rights is correctness” (see also: Taseko Mines Limited v Canada (Environment), 2017 FC 1100 at paras 49 and 54, affd 2019 FCA 320 at paras 19 and 22).
[47] I will follow this approach, as suggested by the FCA at paragraph 21 of Correctional Officers, and followed by Chief Justice Crampton in Spencer. I find this approach to be consistent with my reading of Vavilov where the SCC confirmed at paragraphs 55-57, that the standard of correctness continues to be applied in reviewing constitutional matters.
[48] This is also consistent with subsequent binding case law issued by the FCA (Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 [Innovative Medicines] and Portnov v Canada, 2021 FCA 171 [Portnov]). In both decisions, the FCA found that the adoption of delegated legislation should be reviewed against the reasonableness standard unless an exception under Vavilov applies (see Portnov at para 10 and Innovative Medicines at para 27). These cases depart from the approach that had been set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64 [Katz], that the Court must find the regulation is “irrelevant,” “extraneous,” or “completely unrelated” to the statutory purpose of the enabling statute (Katz at para 28). Katz was published several years before Vavilov. The FCA confirmed that Vavilov is the most appropriate lens to consider the validity of regulations (Innovative Medicines at para 26, Portnov at paras 22-28).
[49] I note that both Portnov and Innovative Medicines are distinct from this case. They both considered the vires of the regulations in question in light of their enabling statute. In both decisions, the FCA determined that no exceptions to the presumption of reasonableness under the Vavilov framework applied (Portnov at para 17; Innovative Medicines at para 45). Here, on the other hand, the validity of the RegDoc is being challenged on the basis of certain elements violating sections 7, 8 and 15 of the Charter.
[50] Vavilov established that the standard of reasonableness is generally applicable when reviewing administrative decisions (Vavilov at paras 16, 23-25). However, there are two exceptions to this presumption. First, if the legislature specifies a standard of review or creates a statutory appeal mechanism that suggests an appellate standard should be used (Vavilov at paras 17, 33-35).
[51] The second exception arises where the rule of law requires the application of the correctness standard for certain categories of legal questions, namely constitutional questions, general questions of law that are significant to the legal system as a whole, and questions concerning the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras 17, 53).
[52] At paragraphs 54-56 of Vavilov, the SCC describes the issues that fall under the constitutional law category as including legal questions on the division of powers between Parliament and the provinces, the relationship between the legislature and other branches of the state, the extent of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982, interpretations of the administrative decision-maker’s enabling statute, and “other constitutional matters that require a final and determinate answer from the courts.”
[53] The exception to the presumption of reasonableness carved out in Vavilov for constitutional questions follows long-standing jurisprudence confirming the certainty and rigour required in the examination of constitutional questions. As held by the FCA in Guérin v Canada (Attorney General), 2019 FCA 272 at paragraph 23:
Regarding whether the Regulations and Directives violate section 7 of the Charter, I am of the opinion that the standard of correctness must apply. It is settled law that constitutional questions must be examined rigorously and without deference in the context of judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paragraph 30; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 58 [Dunsmuir]; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2019] F.C.J. No. 186 at para. 30; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2018] F.C.J. No. 1007, at para. 36, leave to appeal to the SCC denied, 38439 (April 18, 2019), [2018] S.C.C.A. No. 506 [Begum]; Canada (Attorney General) v. Association of Justice Counsel, 2016 FCA 92, [2016] F.C.J. No. 304, at para. 23.
[Emphasis added]
[54] Similarly, in Air Canada Pilots Association v Air Canada, 2023 FC 138 [Pilots Association], this Court recently considered whether a regulatory exemption under two subsections of the Canadian Human Rights Benefit Regulations, SOR/80-68 infringed subsection 15(1) of the Charter. Justice Furlanetto held at paragraph 20, relying on paragraphs 55-57 of Vavilov: “The standard of review for the substantive issue is correctness. The compatibility of subsections 3(b) and 5(b) of the Regulations with the Charter is a constitutional question that falls within an exception to the presumption of reasonableness.”
[55] In this case, the Charter challenges advanced by the Applicants are characterized as “attacking head on the constitutionality” of the RegDoc (see: Correctional Officers at para 21). In my view, the approach used in Correctional Officers, and recently followed by this Court in Spencer and Pilots Association, is the more appropriate approach to adjudicate the Charter questions in this case; and I find it to be consistent with Vavilov, falling within the exception to the presumption of reasonableness of “other constitutional matters that require a final and determinate answer from the courts” (Vavilov at para 55).
IV. Analysis
[56] The nuclear industry is unique. All Parties concur that safety is the most important priority, and that public interest in nuclear safety is high. A nuclear incident can have devastating and long lasting impacts on the community and the environment. It is within this unique context of the highly regulated nuclear industry that I find the pre-placement and random testing provisions of the RegDoc are constitutional and do not breach sections 8, 15 or 7 of the Charter, as will be explained next.
A. Applicability of the Charter
[57] The Charter binds the conduct of state actors and does not limit private or non-governmental activity (RWDSU v Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573). For instance, a search or seizure carried out by a private citizen does not trigger section 8 scrutiny unless the private citizen was acting as an agent of the state or was exercising statutory delegation of governmental powers (R v Buhay, 2003 SCC 30 at para 31).
[58] Subsection 32(1) of the Charter defines the scope of its application in the following terms:
32 (1) This Charter applies
32 (1) La présente charte s’applique :
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
a) au Parlement et au gouvernement du Canada, pour tous les domaines relevant du Parlement, y compris ceux qui concernent le territoire du Yukon et les territoires du Nord-Ouest;
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
b) à la législature et au gouvernement de chaque province, pour tous les domaines relevant de cette législature.
[59] In Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624, Justice La Forest, writing for a unanimous court, summarized the applicable principles for the interpretation of section 32:
. . . the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non‑governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly “governmental” in nature — for example, the implementation of a specific statutory scheme or a government program — the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.
[60] In Greater Vancouver Transportation Authority, Justice Deschamps reiterated that the Charter applies not only to Parliament, the legislatures, and government, but also to “all matters within the authority of those entities” (para 14).
[61] The Parties did not cite any decisions explicitly stating that the Charter applies to nuclear power workplaces, nor am I aware of any such jurisprudence. However, I note that in one somewhat analogous context in the early days of the Charter, the Ontario Labour Relations Board found at para 35 of Electrical Power Systems Construction Council of Ontario v Ontario Hydro, 1984 CanLII 1050 (ON LRB): “[t]here appears to be little doubt that the Charter would apply to actions of government officials in issuing regulations and granting or denying licences or benefits authorized under statutes.”
[62] I further note that the SCC has held that bodies created by statute (like municipalities and school boards) are government entities with legislative powers and the Charter applies (Godbout v Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 SCR 844 at paras 50, 51 118 [Godbout] and Chamberlain v Surrey School District No. 36, 2002 SCC 86). Likewise, the CNSC is an entity that was created by Parliament, is thus a “government entity”, and accordingly, the Charter applies.
[63] More specifically, the CNSC is a federal regulator, mandated to oversee the production and use of nuclear power in Canada, operating in the public interest. It was established as an agent of the Crown pursuant to subsection 8(2) of the Act. The CNSC members and president are appointed by the Governor in Council (subsections 10(1) and (3) of the Act). Pursuant to section 19, the Governor in Council may issue “directives” to the Commission that are legally binding. Moreover, sections 12 and 72 of the Act define the role of the CNSC’s President as being its chief executive reporting to the Minister of National Resources.
[64] In short, as the CNSC is governmental in nature, it is subject to Charter review.
B. The pre-placement and random testing provisions of the RegDoc do not infringe section 8 of the Charter
[65] Section 8 of the Charter confers the right “to be secure against unreasonable search or seizure.” At its core, the purpose of section 8 is to shield against unjustified state intrusions on personal privacy (R v Kang-Brown, 2008 SCC 18 at para 8; Hunter et al v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, at p 160 [Hunter v Southam]). Broadly speaking, section 8 protects a claimant’s reasonable expectation of privacy against unreasonable state intrusion (R v Tessling, 2004 SCC 67 at paras 18-16 [Tessling]).
[66] I begin my analysis with a brief discussion of the applicability of the section 8 case law to the unique nature of the case at bar. In the context of criminal law, the contemplation of unreasonable search or seizure protection calls for a highly fact-specific analysis into whether an accused’s personal right to privacy was infringed by the state. As a matter of standing under section 8, an accused may only invoke his or her own personal privacy rights and not those of a third party (see for instance: R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at paras 43, 45-47 [Edwards]; R v Marakah, 2017 SCC 59 at para 12).
[67] Section 8 has certainly been found to extend beyond the protection against unreasonable search and seizure in a criminal law context (see: R v McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 SCR 627 at 640-641 [McKinlay Transport]; Comité paritaire de l’industrie de la chemise v Potash, 1994 CanLII 92 (SCC), [1994] 2 SCR 406 at 408 [Comité paritaire]; Thomson Newspapers Ltd. v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), 1990 CanLII 135 (SCC), 54 CCC (3d) 417 at 495-496 [Thomson Newspapers]).
[68] However, in each of these non-criminal law decisions, the SCC contemplated the particulars of a search or seizure event that had already transpired. In McKinlay Transport, the Court considered the constitutionality of provisions of the Income Tax Act, RSC 1985, c 1, after these provisions had been applied to two corporate taxpayers.
[69] The Court in Comité paritaire, similarly considered the inspection powers of an agency in a regulated industrial sector (textile manufacturing), after the inspectors had attempted to investigate the premises in question in accordance with their powers under the impugned legislation. In Thomson Newspapers, the Court considered whether section 17 of the Combines Investigation Act violated sections 7 and 8 of the Charter after it was used to serve the corporate appellant and several of its officers with orders to appear before the Restrictive Trade Practices Commission, to be examined under oath and to produce documents.
[70] Although non-criminal, McKinlay Transport, Comité paritaire and Thomson Newspapers each involved a “factual foundation” to consider the constitutionality of the search or seizure incident at issue (see also MacKay at page 361).
[71] Evidently, in this case, the implementation of the impugned provisions is stayed pending the final determination of this Application for Judicial Review (Power Workers 2022 at para 6). I am thus being asked to adjudicate the constitutionality of a seizure to be authorized by the RegDoc, but which has not taken place for any particular worker, given the injunction issued in Power Workers 2022.
[72] The FCA decisions Correctional Officers and Marine Reference (above) are instructive on how to consider an inchoate search or seizure – namely one that is authorized by a particular statutory or regulatory regime, but which has not yet taken place. Correctional Officers, decided after Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 [Goodwin], considered the constitutionality of a prospective search in a regulatory context.
[73] In Marine Reference, the Court considered a regulatory scheme that would apply to screen workers employed in security-sensitive positions in Canadian ports. The regulations at issue required workers to provide biographical information about themselves and their spouses to the Minister of Transport to determine whether the workers represented a security threat to Canada’s operations. At paragraph 28 of Marine Reference, Justice Evans, writing for the Court, emphasized three relevant considerations to frame the Charter challenges brought in a particular regulatory context:
[28] First, as the party alleging Charter violations, ILWU [the Applicant] has the burden of proving a prima facie breach, even when the section of the