The Federal Court of Appeal has upheld the legality of mandatory pre-placement and random alcohol and drug testing for safety-critical workers at high-security nuclear facilities. The decision dismisses an appeal by unions and individual employees who argued that these testing requirements violated their rights under the Canadian Charter of Rights and Freedoms.
The appellants — including the Power Workers’ Union, the Society of United Professionals, the Chalk River Nuclear Safety Officers Association, the International Brotherhood of Electrical Workers Local 37, and individual workers challenged the Canadian Nuclear Safety Commission’s imposition of testing as a licensing condition for operators of Class I nuclear facilities.
They contended that the requirements infringed upon sections 7 (life, liberty, and security of the person), 8 (unreasonable search and seizure), and 15 (equality rights) of the Charter. Additionally, they argued that the Commission’s decision was unreasonable on administrative law grounds.
Justice LeBlanc, writing for the Court of Appeal, affirmed the lower court’s decision, stating that the testing requirements are reasonable within the highly regulated context of the nuclear industry. “In the unique context of this case, I find that the safety-critical workers’ interest in being left alone by the government does not, given the safety-critical nature of their work, outweigh the government’s interest in intruding on their privacy,” he wrote.
Diminished expectation of privacy
The court acknowledged that while the collection of bodily samples — such as breath, urine, or saliva — constitutes a search or seizure under section 8 of the Charter, safety-critical workers have a diminished expectation of privacy due to the inherent risks associated with nuclear facilities. Justice LeBlanc noted, “One cannot ‘wait and see’ given the severe consequences that often result from nuclear incidents.”
The court emphasized that the testing is authorized by law under the Nuclear Safety and Control Act and related regulations. The Commission has broad authority to impose licensing conditions necessary for the protection of national security, health, and safety. The testing requirements aim to prevent “unreasonable risk” associated with impaired performance in safety-critical roles.
Rejection of charter violations
On the section 7 claim regarding life, liberty, and security of the person, the court found that the appellants failed to demonstrate a deprivation of these rights. The testing procedures were deemed minimally intrusive and did not interfere significantly with bodily integrity or cause serious psychological stress.
Concerning the section 15 equality rights claim, the appellants argued that the testing discriminated against workers with drug or alcohol dependencies, constituting discrimination based on disability. The court rejected this, finding no evidence of a disproportionate impact on any protected group. “The appellants have failed to demonstrate that the Impugned requirements impose ‘burdens or deny benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group’s disadvantage,’” Justice LeBlanc stated.
Administrative law arguments dismissed
The appellants also challenged the Commission’s decision on administrative grounds, claiming a lack of adequate reasons and improper reliance on sub-regulatory guidelines. The court found that the Commission provided sufficient rationale, supported by a decade-long consultation process and staff reports addressing safety concerns and legal considerations.
Justice LeBlanc noted that the Commission’s mandate to ensure nuclear safety grants it discretion to implement such testing requirements. “The Commission’s most important responsibility… is to regulate the development, production and use of nuclear energy in a way that prevents ‘unreasonable risk’ to the environment, the health and safety of persons,” he wrote.
For more information, see Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 (CanLII).
