Case In Point
Federal Court of Appeal Upholds Mandatory Nuclear Industry Alcohol and Drug Testing Requirements for Workers in “Safety-Critical” Positions
Date: January 6, 2025
In a significant ruling for employers in safety-sensitive industries, the Federal Court of Appeal has upheld the constitutional validity of mandatory pre-placement and random alcohol and drug testing requirements for safety-critical positions at Class I nuclear facilities. The decision in Power Workers’ Union et al v Attorney General of Canada, Ontario Power Generation, Bruce Power, NB Power and CNL confirms the Canadian Nuclear Safety Commission’s (CNSC) authority to implement such measures and provides important guidance on balancing workplace safety with privacy rights in highly regulated workplaces.
Background
The challenged requirements, outlined in REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use, Version 3 (RegDoc), apply to nuclear facility workers whose decisions or actions directly impact nuclear safety and security. The RegDoc mandates both pre-placement and random alcohol and drug testing for workers in safety-critical positions at Class I nuclear facilities.
While developed through extensive consultation by the CNSC, these requirements have been on hold pending resolution of legal challenges brought by six workers and their unions. The challengers contested these provisions on multiple grounds, arguing violations of the Canadian Charter of Rights and Freedoms (Charter)—specifically sections 7 (security of person), 8 (unreasonable search and seizure), and 15 (equality rights). They also challenged the reasonableness of the CNSC’s implementation of the testing requirements through licensing requirements as opposed to regulations.
The Federal Court dismissed the unions’ claims, finding that the mandatory pre-placement alcohol and drug testing requirements imposed by the CNSC did not violate the Charter rights of the workers, nor were the requirements unreasonable from an administrative law perspective.
This ruling prompted an appeal by the unions to the Federal Court of Appeal.
Court of Appeal’s Analysis
The Federal Court of Appeal’s decision focused primarily on the section 8 Charter challenge regarding unreasonable search and seizure. In its analysis, the Court carefully weighed safety-critical workers’ privacy interests against the government’s objective of mandating random, pre-placement, reasonable cause and post-incident alcohol and drug testing to enhance existing layers of risk reduction (which already include some forms of drug and alcohol testing)—referred to in the nuclear sector as “defence in depth.”
The Court acknowledged the distinctive nature of the highly regulated nuclear industry, where safety stands as the paramount priority. Given this context, workers at high-security nuclear sites who perform tasks critical to ensuring facility safety—and by extension, the safety of the public and environment—could not reasonably claim a high expectation of privacy. The Court affirmed and agreed with the CNSC and its licensees that safety must take precedence in nuclear facility operations and endorsed a pre-emptive and proactive approach to safety measures rather than a “wait and see” approach in high-security nuclear sites.
The Court found the testing requirements reasonable under section 8 of the Charter, specifically approving several key mechanisms, including:
- cut-off levels chosen to indicate recent use and increased likelihood of impairment
- administrative procedures for challenging positive results
- recommendations for confirmatory testing
- non-punitive focus on safety and treatment
Notably, the Court also dismissed challenges under sections 7 and 15 of the Charter, finding the testing procedures relatively non-invasive and detecting no arbitrary discrimination. The Court emphasized that the RegDoc requires accommodation of workers with dependencies to the point of undue hardship.
In analyzing whether the RegDoc’s requirements were “authorized by law” under section 8 of the Charter, the Court confirmed that the CNSC has significant latitude to regulate the nuclear industry and that using regulatory documents to impose legally binding license conditions was reasonable and within its statutory authority.
Furthermore, the Court found that implementing these requirements through license conditions, rather than regulations, was appropriate in the context of preventing unreasonable risks to the environment and public health and safety from the development, production, and use of nuclear energy.
Looking Forward
The applicant unions have indicated their intention to seek leave to appeal to the Supreme Court of Canada and to seek the continuation of the existing stay pending the Court’s disposition of the leave application.
Key Takeaways
This ruling represents a significant development in Canadian workplace safety law, particularly for employers operating in highly regulated, safety-sensitive industries. It demonstrates the Court’s willingness to find a diminished privacy right in highly safety-sensitive contexts and, in so doing, to support reasonable safety measures while ensuring appropriate protections for worker rights.
The respondents—Ontario Power Generation, Bruce Power, New Brunswick Power Corporation and Canadian Nuclear Laboratories—were successfully represented by Hicks Morley’s Henry Dinsdale, Frank Cesario, Dianne Jozefacki, Amanda Cohen and Gabrielle Lemoine.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
