Court cites responsibility 'to regulate the development, production and use of nuclear energy in a way that prevents 'unreasonable risk''
Canada’s Federal Court of Appeal has upheld pre-placement and random drug and alcohol testing requirements for certain employees in Canada’s nuclear industry.
The Canadian Nuclear Safety Commission's (CNSC) has the authority to implement these requirements as a condition of licensing for nuclear operators, according to the ruling.
The decision impacts those in "safety-critical positions" – roles identified by the CNSC as having a direct and immediate influence on nuclear safety.
“I have already decided that this broad power coupled with the obligation made on Licensees under the General Regulations and Class I Regulations, to maintain human performance programs that include ongoing attention to reducing the likelihood of human performance-caused safety events, provided ample authority for the adoption and implementation of the Impugned requirements,” says Justice René LeBlanc in the decision.
“This authority is reinforced when considering the Commission’s most important responsibility, which 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.”
Judges Yves de Montigny and Richard Boivin agreed with the decision.
In 2023, CNSC got the green light to implement rules regarding random substance testing in some workplaces. The Federal Court has endorsed CNSC’s move to require pre-placement and random alcohol and drug testing of workers in safety-critical positions at high-security nuclear facilities.
The testing is mandated by CNSC regulatory document REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use.
LeBlanc emphasized the unique context of nuclear work, which requires rigorous safety protocols due to the "devastating and long-lasting impacts on the community and the environment" that could result from any lapse in safety. LeBlanc concluded that “safety is the most important priority,” justifying the infringement on privacy to ensure nuclear safety.
“The safety-critical workers have a diminished expectation of privacy due to the highly regulated nature of their workplace,” the judgment states, explaining that this diminished expectation stems from the critical safety responsibilities of nuclear industry employees.
The appellants in the case included:
- Power Workers’ Union
- Society of United Professionals
- The Chalk River Nuclear Safety Officers Association
- International Brotherhood of Electrical Workers Local 37
The respondents are:
- Attorney General of Canada
- Ontario Power Generation
- Bruce Power
- New Brunswick Power Corporation
- Canadian Nuclear Laboratories
Reasonableness of drug testing requirements
The appellants argued that random testing without individual suspicion was unreasonable, as it permitted unwarranted intrusions into employees’ privacy. They contended that only clear statutory language could authorize such requirements.
However, the court found that the CNSC had authority under Canada’s Nuclear Safety and Control Act to set “necessary terms and conditions” for licenses, particularly in highly regulated environments like nuclear facilities. The ruling highlighted that the testing requirements are part of a larger “defense-in-depth” approach to nuclear safety, which aims to prevent, detect, and respond to any safety issues proactively.
The court also determined that although workers in safety-critical roles have some residual privacy interests, these are outweighed by the public interest in nuclear safety. The CNSC’s role as the nuclear regulator, which includes oversight of human performance factors, justified the testing.
“One cannot ‘wait and see’ given the severe consequences that often result from nuclear incidents,” the judgment noted, supporting the CNSC’s decision to require random testing even without individualized suspicion.
Security of person and employment rights
The appellants also claimed that the testing requirements also violated their rights under Section 7 of the Canadian Charter of Rights and Freedoms, arguing that the demands infringed on their personal autonomy and integrity.
However, the court disagreed, noting that the relatively non-invasive collection of bodily samples, such as saliva, urine, or breath, did not reach the threshold of a serious impact on bodily integrity or psychological stress.
The judgment emphasized that while some adverse employment effects could result from positive test results, the testing regime itself does not impose disciplinary consequences. Instead, it mandates that workers with positive tests be referred for assessment, focusing on rehabilitation rather than punishment.
Equality rights not infringed
The appellants also claimed that the testing requirements disproportionately affected workers with drug and alcohol dependencies, arguing that this group constituted a protected category under Section 15 of the Charter, which ensures equal protection and benefit of the law without discrimination.
The court dismissed this argument, stating that the appellants provided no evidence of a disproportionate impact on workers with substance dependencies.
The court observed that the safety-critical roles in question represent only a fraction of the nuclear workforce, which is subject to extensive regulation and heightened safety requirements. It further noted that these requirements aim to protect public safety rather than to unfairly target or stigmatize individuals based on substance use.
“Random drug and alcohol testing is not the preferred way to go unless it can be demonstrated as the only reasonable [option],” Sharaf Sultan, principal of Sultan Lawyers in Toronto, previously stated.
He was referring to the Ontario Superior Court’s quashing of a policy requiring Ottawa airport employees in safety-sensitive positions to submit to random drug and alcohol testing.
