Power Workers’ Union v. Canada (Attorney General)

Power Workers’ Union v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2024-11-06
Neutral citation
2024 FCA 182
File numbers
A-184-23
Decision Content
Date: 20241106
Docket: A-184-23
Citation: 2024 FCA 182
CORAM:
DE MONTIGNY C.J.
BOIVIN J.A.
LEBLANC J.A.
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
Appellants
and
ATTORNEY GENERAL OF CANADA, ONTARIO POWER GENERATION, BRUCE POWER, NEW BRUNSWICK POWER CORPORATION and CANADIAN NUCLEAR LABORATORIES
Respondents
Heard at Ottawa, Ontario, on January 31, 2024.
Judgment delivered at Ottawa, Ontario, on November 6, 2024.
REASONS FOR JUDGMENT BY:
LEBLANC J.A.
CONCURRED IN BY:
DE MONTIGNY J.C.
BOIVIN J.A.
Date: 20241106
Docket: A-184-23
Citation: 2024 FCA 182
CORAM:
DE MONTIGNY C.J.
BOIVIN J.A.
LEBLANC J.A.
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
Appellants
and
ATTORNEY GENERAL OF CANADA, ONTARIO POWER GENERATION, BRUCE POWER, NEW BRUNSWICK POWER CORPORATION and CANADIAN NUCLEAR LABORATORIES
Respondents
REASONS FOR JUDGMENT
LEBLANC J.A.
I. Introduction [1] This is an appeal of a decision of Diner J. from the Federal Court (the Application Judge) rendered on June 6, 2023: Power Workers’ Union v. Canada (Attorney General), 2023 FC 793 (the Decision). In issue before the Application Judge was the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities (the Licensees).
[2] These pre-placement and random alcohol and drug testing requirements (the Impugned requirements) are aimed at workers within these facilities who occupy—or have successfully applied to occupy—what are called “safety-critical positions”. Safety-critical workers are those making decisions or taking actions that have the most direct and immediate impact on nuclear safety and security at Class I facilities. At all relevant times, they represented less than 10% of the facilities’ entire workforce (Decision at para. 16).
[3] The appellants—six affected workers and their unions—claimed before the Application Judge that the Impugned requirements breached their rights under sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) and were not saved by section 1 of the Charter. They claimed, in the alternative, that the Commission’s decision to adopt and implement the Impugned requirements on Licensees was unreasonable on administrative law grounds.
[4] The proceedings, brought by the appellants in the form of an application for judicial review, were directed at the Attorney General of Canada (the Attorney General). They were directed as well at the three main Canadian Licensees (the Licensee Respondents), which all defended, as did the Attorney General, the validity of the Impugned requirements (collectively, the Respondents).
[5] The Application Judge rejected the appellants’ claim on all counts. The appellants ask this Court to overturn the Application Judge’s decision. Having carefully weighed the arguments of the parties and considered the applicable law, I am of the view that the appeal should be dismissed.
II. Context [6] The essential elements forming the backdrop to the issues before us can be summarized as follows.
A. The applicable legislative framework [7] Nuclear safety in Canada is governed by the Nuclear Safety and Control Act, S.C. 1997, c. 9 (the Act) and the regulations adopted thereunder. The Act’s purpose is two-fold, as outlined in section 3 of the Act:
To limit the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information; and
To implement in Canada, measures to which Canada has agreed respecting international control of the development, production and use of nuclear energy, including the non-proliferation of nuclear weapons and nuclear explosive devices.
[8] The Commission is established by section 8 of the Act. It has a dual role, being both a regulatory and an adjudicative body. Consistent with the Act’s purpose, the Commission is tasked with regulating the development, production and use of nuclear energy and the production, possession and use of nuclear substances and prescribed equipment, in a manner that: (a) prevents “unreasonable risk” to the environment, the health and safety of persons, and national security associated with those activities; and (b) achieves conformity with measures of control and international obligations to which Canada has agreed (subsection 9(a)).
[9] As Canada’s sole nuclear regulator, the Commission is empowered to issue licences to persons wishing to carry any of these regulated activities, which are otherwise prohibited. This power entails the authority to issue, renew, suspend, in whole or in part, revoke or replace a licence, or authorize its transfer (sections 24–26). It entails, as well, the power to subject licenses to “any term or condition that the Commission considers necessary for the purposes of [the] Act” (subsection 24(5)).
[10] The Commission is also entrusted with a fairly wide regulation-making authority, albeit subject to Governor in Council’s approval (subsection 44(1)). This authority includes the power to make regulations respecting the protection of the environment and the health and safety of persons from any risks associated with licensed activities (paragraph 44(1)(f)), and the qualifications and training of nuclear facility workers (paragraph 44(1)(k)).
[11] The body of regulatory instruments adopted by the Commission is quite substantial and covers a number of subject matters ranging from general nuclear safety (General Nuclear Safety and Control Regulations, S.O.R./2000-202), radiation protection (Radiation Protection Regulations, S.O.R./2000-203), and packaging and transport of nuclear substances (Packaging and Transport of Nuclear Substances Regulations, 2015, S.O.R./2015-145) to the classification of nuclear facilities (Class I Nuclear Facilities Regulations, S.O.R./2000-204, and Class II Nuclear Facilities and Prescribed Equipment Regulations, S.O.R./2000-205).
[12] In particular, the General Nuclear Safety and Control Regulations (the General Regulations) provide a general framework for the issuance, renewal, amendment, abandonment, revocation or replacement of a licence (sections 3–6), and lists grounds upon which the Commission may on its own motion renew, suspend, amend, revoke or replace a licence (section 8). One of the grounds listed in section 8 is a licensee’s failure “to comply with the Act, the regulations made under the Act or the licence” (paragraph 8(2)(c)).
[13] The General Regulations also impose a number of obligations on licensees, including that of taking “all reasonable precautions to protect the environment and the health and safety of persons and to maintain the security of nuclear facilities and of nuclear substances” (paragraph 12(1)(c)). Similarly, the General Regulations impose on workers an obligation to “comply with the measures established by the licensee to protect the environment and the health and safety of persons” (subsection 17(b)).
[14] More specifically, when it comes to Class I nuclear facilities, the Class I Nuclear Facilities Regulations (the Class I Regulations) provide that all licence applications for such a facility must contain, in addition to the information required by the General Regulations, “the proposed human performance program for the activity to be licensed, including measures to ensure workers’ fitness for duty” (subsection 3(d.1)).
[15] No one in this case seriously disputes that the nuclear industry in Canada is highly regulated.
B. The pre-placement and random alcohol and drug testing requirements [16] The requirements for pre-placement and random alcohol and drug testing are found in what is called a “regulatory document”. In issue in this case is Regulatory Document 2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use, Version 3 (the RD2.2.4). It sets out requirements and provides guidance for managing the fitness for duty of those workers in Class I nuclear facilities who occupy—or have successfully applied to occupy—safety-critical positions. RD2.2.4 is part of a series of regulatory documents on the management of human performance. According to the Commission, RD2.2.4 is a “key contributor to the safety and security of nuclear facilities” (Appeal Book at 4321, Affidavit of Lynda Hunter at para. 34 (Hunter Affidavit)).
[17] In particular, RD2.2.4 requires Licensees to implement five types of drug and alcohol testing: pre-placement testing (section 5.1), reasonable grounds testing (section 5.2), post-incident testing (section 5.3), follow-up and return-to-duty testing (section 5.4) and random testing (section 5.5). RD2.2.4 also provides for a number of drug and alcohol testing processes and results thresholds, and it lays out what comes next for a safety-critical worker who receives a positive drug or alcohol test result (section 6).
[18] It is important to note that the appellants are not challenging the validity of RD2.2.4 as a whole. They only challenge the provisions requiring Licensees to conduct pre-placement (section 5.1) and random testing (section 5.5). These provisions read as follows:
5.1 Pre-placement alcohol and drug testing
5.1 Tests de dépistage d’alcool et de drogues préalables à l’affectation
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.
Les titulaires de permis devront exiger que tous les candidats à un poste essentiel sur le plan de la sûreté (voir la section 4.1, puces 1 et 2) qui ont réussi les étapes précédentes du concours se soumettent à des tests de dépistage d’alcool et de drogues, en tant que condition d’emploi. Les personnes transférées à un poste essentiel sur le plan de la sûreté (voir la section 4.1, puces 1 et 2) seront également tenues de se soumettre à un test de dépistage d’alcool et de drogues préalable à l’affectation.
5.5 Random alcohol and drug testing
5.5 Tests aléatoires de dépistage d’alcool et de drogues
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.
Les titulaires de permis devront exiger que tous les travailleurs occupant un poste essentiel sur le plan de la sûreté (voir la section 4.1, puces 1 et 2) se soumettent à des tests aléatoires de dépistage d’alcool et de drogues. Le processus d’échantillonnage qu’utilisent les titulaires de permis pour sélectionner ces travailleurs qui devront se soumettre à un test aléatoire de dépistage devra faire en sorte que le nombre de tests aléatoires de dépistage réalisés au moins tous les 12 mois soit égal à au moins 25 % de la population de travailleurs visée.
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.
Les titulaires de permis devront élaborer des procédures et des pratiques permettant de s’assurer que le test aléatoire de dépistage est administré d’une manière qui fournit l’assurance raisonnable que les personnes ne sont pas en mesure de prédire le moment où les échantillons seront prélevés.
The following shall be addressed for the implementation and conduct of random testing:
La mise en œuvre et l’exécution des tests aléatoires de dépistage devront prendre en compte les éléments suivants :
1. Ensure that all individuals in the population subject to testing have an equal probability of being selected and tested.
1. veiller à ce que toutes les personnes de la population soumise aux tests de dépistage aient une probabilité égale d’être sélectionnées et soumises aux tests
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.
2. exiger que les personnes se trouvant à l’extérieur du site au moment de la sélection pour le test de dépistage, ou celles qui se trouvent sur le site, mais qui, pour de bonnes raisons, ne sont pas disponibles en vue de subir le test de dépistage au moment de leur sélection, soient soumises au test de dépistage dans les plus brefs délais lorsque le donneur et les personnes chargées du prélèvement des échantillons sont tous disponibles pour recueillir les échantillons à analyser et sans préavis à la personne sélectionnée pour le test de dépistage
3. Provide that an individual completing a test is immediately eligible for another unannounced test.
3. prévoir qu’une personne ayant subi un test de dépistage soit à nouveau admissible à un autre test de dépistage non annoncé, et ce de façon immédiate.
[19] Regulatory documents are not regulatory instruments per se, as are the regulations adopted pursuant to subsection 44(1) of the Act. According to the Commission’s evidence, regulatory documents “explain to licensees and applicants what they must achieve in order to meet the requirements set out in the [Act] and the regulations made under the [Act]”. They contain mandatory requirements and provide for guidance as well. They are “typically implemented after a long consultation process and are utilized by the [Commission] frequently to implement standards and requirements across various areas of the nuclear industry.” (Hunter Affidavit at paras. 27-30).
[20] Regulatory documents that form part of a license are those referenced in what is called the licensee’s “Licensing Basis”, which is a document that “sets out the boundaries for a licensees [sic] regulated nuclear activity and establishes the basis for how the [Commission] assesses the licensee’s compliance with its license.” (Hunter Affidavit at para. 22).
[21] The “Licensing Basis” and by extension the regulatory documents to which it refers, are tools developed by the Commission to allow it “to regulate the nuclear industry in a manner that is adaptive and flexible to new science, operational experience, and changing international obligations.” (Hunter Affidavit at para. 24).
[22] RD2.2.4 forms part of the “Licensing Basis” of the Licensees’ licences.
[23] I note that the Impugned requirements are yet to be implemented due to a stay order issued first by the Federal Court and then by this Court, pending final disposition of the present matter (Power Workers’ Union v. Canada (Attorney General), 2022 FC 73 and Power Workers’ Union v. Canada (Attorney General), 2023 FCA 215) (the Stay Orders).
III. The Decision [24] After having laid out the context of this case and reviewed the development of RD2.2.4, the Application Judge considered both the constitutionality of the Impugned requirements and their validity from an administrative law standpoint. He applied the standard of correctness to the first issue and engaged in reasonableness review with respect to the second issue.
A. The Charter claim [25] The Application Judge found that the Impugned requirements did not breach sections 7, 8 or 15 of the Charter. This finding was largely informed by the “unique context” of the highly regulated nuclear industry where “safety is the most important priority” given the “devastating and long lasting impacts on the community and the environment” a nuclear incident can have (Decision at para. 56).
[26] On the section 8 claim, because no search has been carried out so far due to the successive Stay Orders, and because he was asked to “strike regulatory provisions that empower Licensees to authorize a seizure”, the Application Judge followed the analytical framework applied by this Court in Reference re Marine Transportation Security Regulations (CA), 2009 FCA 234 (Marine Reference), and recently followed in Union of Canadian Correctionnal Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) v. Canada (Attorney General), 2019 FCA 212 (Correctional Officers), “as guided by the [Supreme Court of Canada] in [Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (Goodwin)]” (Decision at para. 77). In applying this framework, the Application Judge considered the following questions:
a)Is section 8 engaged by the Impugned requirements, based on the safety-critical workers’ reasonable expectation of privacy?
b)If so, are the Impugned requirements “authorized by law”? and
c)If so, are they reasonable?
[27] On the first question, the Application Judge determined that requiring the Licensees to collect bodily samples (breath, urine or saliva) involved the taking of personal and informational data, and that this amounted to a search or seizure within the construct of section 8 (Decision at para. 82). On the reasonable expectation of privacy requirement, the Application Judge found that although safety-critical workers have a diminished expectation of privacy when working at nuclear facilities, given the highly regulated nature of the nuclear power workplace, their privacy interest in the collection of their bodily samples “[was] by no means eliminated”. Therefore, to the extent that the Impugned requirements permit the Licensees to take these workers’ biographical information without their consent, he concluded that section 8 is engaged (Decision at paras. 97–98).
[28] At the second stage of the analysis, the Application Judge held that the Impugned requirements are “authorized by law”. He was not persuaded by the appellants’ argument that the collection of bodily samples could only be authorized by clear statutory language, not general grants of regulatory power, as is the case here. This is because, he said, this argument “fails to consider the regulatory context in which the seizure is authorized”, a context that requires “a more flexible approach to the ‘authorized by law’ requirement, as suggested by the [Supreme Court of Canada]” (Decision at para. 104).
[29] For the Application Judge, the Commission’s authority to impose the Impugned requirements rests on the General Regulations and Class I Regulations, which both “require Licensees to maintain human performance programs that include ongoing attention to reducing the likelihood of human performance-caused safety events” and on the Commission’s broad power under subsection 24(2) of the Act to impose licensing requirements “as it sees fit” (Decision at para. 105).
[30] On the third question, the Application Judge was satisfied that the Impugned requirements were reasonable “when considering all the contextual factors at hand, including the regulatory context, the public interest in nuclear safety, the identified need to bolster fitness for duty programs, the reliability of the testing methodology, and the availability of judicial oversight.” (Decision at para. 151). He agreed that in the nuclear industry, “one cannot ‘wait and see’ given the severe consequences that often result from nuclear incidents.” (Decision at paras. 127–28). Being urged by the appellants to rely on arbitral jurisprudence, according to which “an employer’s interest in safety will not justify breaching an employee’s privacy rights without reasonable cause, even in an inherently dangerous workplace”, the Application Judge found that this jurisprudence was not authoritative for the section 8 analysis, and was, in any event, distinguishable on a number of grounds (Decision at paras. 109–12).
[31] The Application Judge then examined the appellants’ section 7 claim. Although he felt that the claim was better captured by section 8, he proceeded to examine it on the merits and concluded that the appellants had failed to meet either prong of section 7’s security of the person test. That test, he said, requires demonstration that the impugned state action: (i) interferes with bodily integrity and autonomy, including deprivation of control over one’s body; or (ii) causes serious state-imposed psychological stress (Decision at paras. 163-64).
[32] The Application Judge found that the threshold for demonstrating a section 7 breach on the basis of employment “is significant and 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.” He stated that section 7 does not protect property or predominantly economic interests, adding that the “adverse effect of not working one’s preferred position at a nuclear plant” is not protected by section 7 (Decision at paras. 164-66).
[33] Finally, the Application Judge rejected the appellants’ section 15 claim on the basis that the first prong of the section 15 test was not met. In particular, he found that the appellants had failed to establish that the Impugned requirements create a distinction or have a disproportionate impact based on an enumerated or analogous ground of discrimination, which is the first prong of the test applicable to a section 15 analysis (Decision at para. 170, citing R. v. Sharma, 2022 SCC 39 at para. 28 (Sharma)). In this respect, the Application Judge noted that the Impugned requirements only applies to a category of workers at nuclear facilities and opined that these workers do not form a “protected group” for the purposes of section 15. He further noted that the appellants had adduced no evidence to show that the Impugned requirements may result in a situation where safety-critical workers affected by a drug or alcohol dependency are members of a disadvantaged group or may experience a disadvantage (Decision at para. 172).
[34] The Application Judge emphasized that an analogous ground of discrimination under section 15 cannot be found without compelling reasons based on personal characteristics that are either immutable or constructively immutable. He noted in this respect that the Supreme Court of Canada, in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 (Malmo-Levine), had rejected attempts to recognize “occupational status” or “substance orientation” as analogous grounds of discrimination under section 15 (Decision at paras. 173–79).
[35] The Application Judge also indicated that had a full section 15 analysis been conducted, the second prong of the section 15 test, which requires a demonstration that the Impugned requirements have the effect of reinforcing, perpetuating or exacerbating a disadvantage would not have been satisfied (Decision at paras. 170, 180). In this respect, the Application Judge noted a “few deficiencies” in the appellants’ arguments, such as the lack of evidence, statistical or otherwise, supporting the claim that a disproportionate number of safety-critical workers have drug or alcohol dependencies and would be affected by the Impugned requirements. He also found that the appellants had failed to explain how the Impugned requirements would result in an arbitrary disadvantage for safety-critical workers with drug or alcohol dependencies (Decision at paras. 181–82).
[36] Having held that no violation of sections 7, 8 and 15 of the Charter had resulted from the addition of the Impugned requirements to RD2.2.4, the Application Judge declined to address the parties’ section 1 arguments.
B. The alternative administrative law claim [37] The Application Judge dismissed both of the appellants’ contentions that the Impugned requirements were unreasonable. First, he held that, contrary to the appellants’ submissions, the Act provided the Commission with “the authority and the discretion to choose the instrument under which to implement pre-placement and random testing provisions”. The decision to opt for a regulatory document, he said, was due to this type of instrument’s “flexibility and adaptability” and was reasonably informed “by changing circumstances such as guidance coming from the [International Atomic Energy Agency] after the nuclear accident in Fukushima [Japan], evolving international practices, the legalization of cannabis in Canada, evolving research on the accuracy and efficacy of drug and alcohol testing, and divergent stakeholders demands.” (Decision at para. 195).
[38] More particularly, the Application Judge was satisfied that the Commission could use the broad powers conferred on it by subsection 24(5) of the Act “to add mandatory requirements to the licence.” (Decision at para. 198). He was also satisfied that the inclusion of the Impugned requirements into RD2.2.4, after a decade-long process of consultation and outreach that led to the publication of that instrument, was done in conformity with the participatory rights of the various stakeholders, including the appellants (Decision at para. 199).
[39] As to the appellants’ contention that the Commission had failed to provide adequate reasons for the inclusion of the Impugned requirements into RD2.2.4, the Application Judge found that the material contained in the Certified Tribunal Record provided a rational chain of analysis to justify that inclusion. According to him, the inclusion of the Impugned requirements stems from “an identified need to bolster fitness for duty programs, particularly with respect to the detection of drug and alcohol impairment.” (Decision at para. 209). He was satisfied as well that the record shows that the Commission not only considered, but also addressed, the Charter concerns raised during the consultation process leading to the inclusion of the Impugned requirements into RD2.2.4 (Decision at paras. 211–13).
IV. Issues and standard of review [40] This appeal raises two issues:
a)Did the Application Judge err in concluding that the Impugned requirements do not violate sections 7, 8 or 15 of the Charter?
b)In the alternative, did the Application Judge commit a reviewable error in concluding that the Impugned requirements are not unreasonable from an administrative law standpoint?
[41] It is settled law that, when this Court hears an appeal from a decision of the Federal Court on judicial review, its role is to determine whether the Federal Court selected the appropriate standard of review and, if so, whether that standard was applied properly. It is settled law as well 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” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10 (Horrocks); Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47 (Agraira); Groupe Maison Candiac Inc. v. Canada (Attorney General), 2020 FCA 88 at paras. 27–28; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 36 (Mason); Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4 at para. 15).
[42] As stated in Mason at paragraph 36, these principles have remained good law following the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov).
[43] Here, the Application Judge applied the correctness standard to the first question and the presumptive standard of reasonableness to the second.
[44] The Application Judge’s choice of standard of review is not in issue with respect to both questions. As stated in Vavilov, “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, such as constitutional questions, including those involving Charter compliance issues (Vavilov at paras. 53–55). As for the second issue, I see nothing that displaces the presumption of reasonableness review, reaffirmed in Vavilov (Vavilov at paras. 23-25).
[45] Therefore, the issue for this Court becomes whether the Application Judge applied these standards properly. With respect to the first issue, the appellants relied on Guérin v. Canada (Attorney General), 2019 FCA 272 at paragraph 23 for the proposition that the Application Judge’s findings “must be examined rigorously and without deference.” For its part, the Attorney General argues that, to the extent the Application Judge “made a determination at first instance” on this issue, the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33 (Housen), apply. The Housen standards require that findings on pure questions of law be reviewed on a standard of correctness and that findings of fact or of mixed fact and law, where there is no extricable question of law, be reviewed on a lesser standard, that of palpable and overriding error.
[46] As the Application Judge received—and considered—new evidence on the Charter component of the case, the case law supports the Attorney General’s contention (Gordillo v. Canada (Attorney General), 2022 FCA 23 at para. 59; Smith v. Canada (Attorney General), 2022 FCA 221 at para. 9; Singh Brar v. Canada (Public Safety and Emergency Preparedness), 2024 FCA 114 at para. 49). Most recently, the appellate standard of review was applied by the Supreme Court in Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 (Canadian Council for Refugees). This was an immigration matter involving a decision of the Federal Court on judicial review regarding the constitutional validity of legislative provisions preventing certain refugee claimants from seeking refugee protection in Canada. Since the Federal Court had “reviewed the evidence first hand”, the Supreme Court reviewed “the factual questions on appeal” on a standard of palpable and overriding error (Canadian Council for Refugees at paras. 5-85, 98).
[47] At the hearing of this appeal, the appellants conceded that the standard of palpable and overriding error applied to the Application Judge’s findings respecting evidence he considered first hand. That said, this is not a case where subjecting the Application Judge’s findings regarding this evidence to the Housen standard of palpable and overriding error has a decisive influence on the outcome of the appeal.
[48] Since most of the written and oral submissions in this case relate to the section 8 claim, I will begin my analysis by addressing it.
V. Analysis
A. The Charter claim
(1) Section 8
[49] Section 8 provides constitutional protection against “unreasonable search or seizure”. When it was first considered by the Supreme Court in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145 (Hunter), that Court identified three core features of that protection:
it protects individuals “from unjustified state intrusions upon their privacy”;
it only extends however to an individual’s “reasonable expectation of privacy”; and
it requires, for the purposes of determining if a state intrusion is justified in a particular situation, an assessment “as to whether the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”.
(Hunter at 159-60).
[50] These core principles have given rise to a two-step analysis. First, it must be determined whether the impugned search or seizure interferes with an individual’s reasonable expectation of privacy. If it does not, then section 8 is not engaged and the inquiry ends there. On the other hand, if the impugned state action does interfere with an individual’s reasonable expectation of privacy, then the question becomes whether said action is reasonable (Goodwin at para. 48).
[51] It is now well-settled that this test applies whether the search or seizure is conducted in criminal or other contexts (Goodwin at para. 60; see also York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at para. 101 (York Region District)). That said, both prong of the test call for a contextual analysis “adapted to occupational realities”. This means, among other things, that courts must adopt a flexible approach “capable of application in a vast variety of legislation schemes” and guard against “indiscriminately import[ing]” criminal law jurisprudence “into non-criminal matters” (York Region District at para. 99; Goodwin at para. 53; Thompson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 at 506-08 (Thompson Newspapers); R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 at 644-47 (McKinlay Transport); British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at 35 (BC Securities)).
[52] As the Supreme Court stated in Thompson Newspapers, at page 506, such an approach, which contemplates the application of a “less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures”, is “fully consistent with a purposive approach to the elaboration of s[ection] 8.”
[53] Here, the appellants contend that the Application Judge erred in dismissing their section 8 claim:
By concluding that safety-critical workers only have a residual privacy interests in their urine, saliva or breath;
By misapprehending the legal requirements that the Impugned requirements be “authorized by law”; and
By failing to perform the appropriate balancing exercise in determining whether the seizure these requirements permit, is reasonable.
(i) Safety-critical workers’ reasonable expectation of privacy [54] There is no dispute that the taking of bodily samples – be it breath, saliva or urine – amounts to a “seizure” within the meaning of section 8. The Application Judge concluded as such and the Respondents conceded this point.
[55] However, the issue before the Application Judge rather turned on whether such seizure interferes with the safety-critical workers’ reasonable expectation of privacy (Decision at para. 78).
[56] The Application Judge concluded that it did, although to a lesser degree than the one claimed by the appellants. In the end, the Application Judge was satisfied that even if the seizure of bodily samples does not automatically attract a high expectation of privacy, the “taking of one’s biographical information without their consent falls squarely within the purview of section 8” (Decision at para. 98). The appellants take issue with the Application Judge’s finding of a diminished expectation of privacy, claiming that it tainted the Application Judge’s whole section 8 analysis.
[57] More particularly, the appellants contend that safety-critical workers have more than “residual” privacy interests in their body. They claim that it is incorrect to assume, as did the Application Judge, that the regulatory nature of the Impugned requirements “presumptively ‘lower[s]’ the reasonableness threshold”. This assumption, they contend, overwhelmed the Application Judge’s entire section 8 analysis despite bodily samples being rarely the subject matter of a regulatory search or seizure, contrary to the search or seizure of regulated premises and documents, which raises much weaker privacy concerns. This, they say, led the Application Judge to ignore the different concerns that arise when a seizure infringes upon a person’s bodily integrity, something which has been described in the case law as “the ultimate affront to human dignity”.
[58] The appellants further contend that the Application Judge erred in refusing to follow the Ontario Superior Court’s decision in Simon Gillies et al. v. Toronto District School Board, 2015 ONSC 1038 (Gillies), which, according to them, provides the most useful analogy to the present matter. In that case, the Ontario Superior Court found mandatory breathalyser tests conducted by high school authorities as a condition of entry to a students’ prom to be an unreasonable search within the meaning of section 8.
[59] Finally, the appellants claim that the Application Judge “fundamentally misapplied” Goodwin. In Goodwin, the Supreme Court was asked to consider the constitutional validity of a roadside breath demands regime put in place by the province of British Columbia as part of its efforts to remove impaired drivers from the province’s roads. They contend that Goodwin is distinguishable in two main respects. First, unlike the pre-placement and random testing regime established under RD2.2.4, the regime under scrutiny in Goodwin was a comprehensive, explicit, regulatory one. Second, the urgency and scope of the roadside breath demands regime’s state objective, which was to “control the tragic chaos caused by drinking and driving” was evident. Here they say, there is no evidence of any impairment problem at Canadian nuclear sites causing or contributing to safety concerns. It is therefore in an entirely different context, the appellants contend, that the provision of breath samples was considered minimally intrusive in Goodwin.
[60] With respect, I cannot agree with these submissions.
[61] The concept of “reasonable expectation of privacy” is a normative one. It corresponds to the “level of privacy that we, as a society, should reasonably expect in a given circumstance” (Goodwin at para. 48).
[62] In that sense, 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. This test, which has sometimes been called the “twin subjective/objective enquir[y]”, requires that the reasonable expectation of privacy of a complainant in a given case be determined on the basis of the “totality of the circumstances” (Goodwin at para. 48. See also York Region District at para. 102, referring to R. v. Tessling, [2004] 3 S.C.R. 432 at paras. 31-32 (Tessling); R. v. Gomboc, [2010] 3 S.C.R. 211 at paras. 18, 78; R. v. Patrick, [2009] 1 S.C.R. 579 at para. 27).
[63] Here, the Application Judge did just that and I see no error in the conclusions he reached. In particular, I see no error in the Application Judge’s reliance on Goodwin. It is important to underscore that these conclusions were drawn in answering the first prong of the section 8 test, which, as noted, requires the reviewing court to determine whether section 8 is engaged by the impugned state action, which, in turn, calls for an assessment of the complainant’s reasonable expectation of privacy.
[64] In my view, Goodwin does indeed provide ample support for the Application Judge’s conclusion that safety-critical workers have a diminished expectation of privacy, given the nature of their work and the unique environment in which that work is being performed (Decision a