Hibernia Platform Employers' Organization Applicant And: Communications, Energy v. Paperworkers Union of Canada, Local 2121, 2018 NLSC 1

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union of Canada, Local 2121 , 2018 NL SC 1 Date : January 3, 2018 Docket : 201601G3100 Between: Hibernia Platform Employers' Organization Applicant And: Communications, Energy and Paperworkers Union of Canada, Local 2121 Respondent Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 1, 2016

Summary: The Applicant employer sought an order quashing the decision of an Arbitration Board that reinstated an employee who had tested positive for prohibited substances on a drug test result. The Arbitration Board had determined that the drug test did not meet the requirements of a valid test and could therefore not be considered as grounds for discipline pursuant to the Alcohol and Drug Policy forming part of the Collective Agreement. The Court found that the decision of the Arbitration Board was not unreasonable. The application for certiorari was dismissed with costs to the Respondent.

Appearances: Stephen F. Penney Appearing on behalf of the Applicant Ian S. Patey Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9; N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011SCC 62; Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers’ Assn., 2016 NLTD(G) 23;Muskrat Falls Employers’ Assn. Inc. v. Resource Development Trades Council of Newfoundland and Labrador, 2015 NLTD(G) 150;Hibernia Platform Employer’s Organization v.

Communications, Energy and Paperworkers Union of Canada, Local 2121 (FitzgeraldGrievance); Lumber and Sawmill Workers’ Union, Local 2537 v. KVP Co. (1965), (ON LA), 16 L.A.C. 73, 1965CarswellOnt 618 (Ont. Arb.); Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34; Weyerhaeuser Co. v. CEP, Local 447 (Kelly), (2012) 225 L.A.C. (4th) 294; Fording Coal Ltd. v. U.S.W.A., Local 7884, (2003) (BC LA), 119 L.A.C. (4th) 165, 74 C.L.A.S. 189 (B.C. Arb.); Weyerhaeuser v. C.E.P., Local 447, [2006] A.G.A.A. No. 48, 154 L.A.C. (4th) 3, (Alb.

Arb.); Canadian National Railway Company and Teamsters Canada Rail Conference (2013), 117 C.L.A.S. 289, 240 L.A.C. (4th) 95, CNR Office of Arbitration & Dispute Resolution; Imperial Oil Ltd. v. C.E.P., Local 900, (2006), 157 L.A.C. (4th) 225, 88 C.L.A.S. 273 (Ont. Arb.) STATUTES CONSIDERED: Labour Relations Act, R.S.N.L. 1990, c. L-1; Controlled Drugs and Substances Act, S.C. 1996, c. 19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D; Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Hibernia Platform Employers’ Organization (the “Employer”) asks this Court to set aside a decision of an ArbitrationBoard rendered on May 2, 2016 (the “Arbitration Award”). The Respondent, Communications, Energy and Paperworkers Union ofCanada, Local 2121 (the “Union”) had filed both an individual and policy grievance arising out of an incident of alcohol and drug testingthat occurred on the Hibernia offshore oil platform on January 15, 2015.

This testing resulted in the termination of employment of oneof its members, Gary Carroll. The Arbitration Board dismissed the Union’s policy grievance but allowed the individual grievance,ordering that Mr. Carroll be reinstated with compensation in an amount to be determined. [2] The Union states that the decision of the Arbitration Board should not be quashed pursuant to Rule 54.02(1) of the Rules ofthe Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D as the decision is eminently reasonable. It submits that the Arbitration Board gavethorough reasons for its decision on the reinstatement of Mr.

Carroll and its decision was not only reasonable, but the correct result in thecircumstances. background [3] The Arbitration Board had the benefit of a Statement of Facts that was agreed between the Employer and the Union. ThisAgreed Statement of Facts is set out below. For ease of reference, I have incorporated the defined terms from the Agreed Statements ofFacts into this judgment. The Communications, Energy and Paperworkers’ Union of Canada, Local 2121 and the Hibernia Platform Employers’ Organizationagree to the following facts: 1.

Gary Carroll was employed on the Hibernia Platform (the “Platform”) by Crosbie Salamis Ltd. (the “Employer”). He was

employed as a Materials Movement Coordinator and had worked on the Platform since 1997 as a regular rotation employee. He wastrained as a Helicopter Landing Officer, and worked in that capacity since at least 2003. 2. The Communications, Energy and Paperworkers’ Union of Canada, Local 2121 (the “Union”), known as Unifor, is the certifiedbargaining agent of the bargaining unit of employees employed on the Platform. 3. The Hibernia Platform Employers’ Organization (the “HPEO”) is the organization of employers formed pursuant to

section 56.1 ofthe Labour Relations Act with full authority to negotiate, enter into, and administer a collective agreement on the Platform. 4. The relevant collective agreement to this arbitration is the collective bargaining agreement between the Union and the HPEO,effective January 7, 2015 (the “Agreement”). 5. The HPEO follows an alcohol and drug policy (the “Policy”), dated August 1, 2006. The Policy applies on the Platform, and toother situations such as during helicopter travel, at the heliport, and during mobilization and demobilization.

Section 38 of the Agreement states the following:

Article 38 – Drug and Alcohol Policy The HPEO will confirm to the Union and the employees, by August 1, 2006, the Alcohol and Drug policy applicable on the platform. The HPEO confirmed the Policy to the Union in writing on August 1, 2006. 7. The Policy was part of the 2006 Collective Agreement and has been in place without challenge since that time. 8. Furthermore, the Policy is consistent with the Collective Agreement and the requirements set forth in K V P Lumber, (ON LA), 1965 CarswellOnt 618 (Wren, Robinson, Hicks). 9.

In December, 2014 and January 2015, there were a series of helicopter manifest errors involving flights from the Platform. OnDecember 6, 2014, there was an extra piece of baggage on the inbound leg (Incident number 2014C013). On December 22, 2014, therewas a missing piece of baggage on the inbound leg (Incident number 2014C014). On January 11, 2015, there were two missing piecesof baggage on the inbound leg (Incident number 2015F005). No post-incident testing was conducted after those three incidents. 10. On January 13, 2015, there was a manifest error in the loading of flight 231 inbound to St.

John’s (the “Incident”). The manifesterror was that a 24 lb bag was indicated as being present on the manifest, but it had not actually been loaded on the helicopter. 11. The Incident was reported internally under incident number 2015F006, and to the C-NLOPB. 12. As a result of the Incident, and the prior manifest errors, the Offshore Installation Manager directed the heli-deck crew to undergopost-incident testing for drugs and alcohol. The heli-deck crew was comprised of Gary Carroll (helicopter loading officer), 6 deckhands, and one non-unionized supervisor. All eight employees took the test. 13.

The drug testing showed that Gary Carroll tested positive for benzodiazepines, including temazepam, oxazepam, nordiazepam andlorazepam, in the following amounts (the “Tests”):

Quantitative level for Temazepam = 345 Ng/ml Quantitative level for Oxazepam = 857 Ng/ml Quantitative level for Nordiazepam = 178 Ng/ml Quantitative level for Lorazepam = 696 Ng/ml 14. There are no issues with the chain of custody or accuracy of the Tests. 15. Subsequent to receiving the results of the Tests, Mr. Carroll underwent a dependency assessment and it was determined that he didnot have a dependency and was fit to return to work. 16. On March 30, 2015, Mr.

Carroll, in the presence of a Union representative, was informed in writing by Heather Conway, VicePresident Human Resources with the Employer, that he was permanently removed from the Hibernia Platform, and terminated as anemployee of the Employer. [4] The Union asked the Arbitration Board to reinstate Mr. Carroll on the basis that he was unjustly terminated. The Union’spolicy grievance also alleged that the employer was conducting post-incident drug and alcohol testing with such frequency that itamounted to random testing. It therefore sought a declaration limiting such testing.

It is only the decision with respect to the individualgrievance that is before the Court on this application for judicial review. [5] Both parties are in agreement with respect to the standard of review that I must apply when determining whether the decisionof the Arbitration Board should be quashed. The standard is that of reasonableness. However, the parties fundamentally disagree as towhether the decision of the Arbitration Board meets that standard. [6] The Employer alleges that the decision is unreasonable for the following reasons: 1.

The Arbitration Board acted unreasonably in applying law related to employer-imposed drug and alcohol testing policies to thePolicy that formed part of the Agreement; 2. The Arbitration Board exceeded its jurisdiction by amending the Agreement; and 3. The Arbitration Board acted unreasonably in reinstating Mr. Carroll, a remedy that was not available to it. [7] In order to consider each of the three grounds raised by the Employer, it is helpful to conduct a general review of what ismeant by the standard of reasonableness.

STANDARD OF REVIEW [8] Both counsel agree that the leading case defining reasonableness in the context of judicial review is Dunsmuir v. NewBrunswick, 2008 SCC 9 , 2008 SCC. 9. At paragraph 47 of that decision, the court defines reasonableness as follows: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [9] The Union agrees that the standard of reasonableness requires a reviewing court to determine whether the decision of theArbitration Board is justifiable, transparent and intelligible and within a range of possible acceptable outcomes.

However, the Unionalso asks the Court to consider the concept of deference incorporated in this reasonableness standard, especially in the case of a review ofa decision of a specialized tribunal. [10] The Union refers to paragraph 53 of Dunsmuir which states that deference automatically applies where the question is one offact, discretion or policy and where the legal and factual issues are intertwined with and cannot be readily separated. [11] The Union also refers to paragraph 64 of Dunsmuir which requires the Court to consider a number of relevant factors inconducting a contextual analysis of reasonableness.

These factors include: 1. the presence or absence of a privative clause; 2. the purpose of the tribunal as determined by

interpretation of enabling legislation; 3. the nature of the question at issue; and 4. the expertise of the tribunal.

[12] The Union notes that section 86(1) of the Labour Relations Act, R.S.N.L. 1990, c. L-1 contains a privative clause stating thatthe decision of an arbitration board relating to a difference between the parties to a collective agreement shall be final and binding uponthe parties. The Union says the presence of this privative clause indicates that a high degree of deference should be given to decisions ofsuch arbitration boards. This high degree of deference was confirmed by the Supreme Court of Canada in the case of N.L.N.U. v.Newfoundland & Labrador (Treasury Board), 2011 SCC 62.

At paragraph 13 of that decision, Abella, J. commented on the deferencerequired as follows: 13 This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for "justification, transparency andintelligibility". To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisionsin their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are oftencounterintuitive to a generalist. That was the basis for this Court's new direction in C.U.P.E., Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 (S.C.C.), where Dickson J. urged restraint in assessing the decisions of specializedadministrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir'sconclusion that tribunals should "have a margin of appreciation within the range of acceptable and rational solutions" (para. 47). [13] The Union says that the question before the Arbitration Board was one of

interpretation and application of the Policy that wasincorporated into the Agreement. Specialized labour arbitration boards are regularly called upon to assess evidence and interpret similarclauses in collective agreements; matters falling within their core jurisdiction. At paragraph 43 of Resource Development Trades Councilof Newfoundland and Labrador v.

Muskrat Falls Employers’ Assn., 2016 NLTD(G) 23, Orsborn, J. noted the same as follows: 43 Assessing evidence to determine whether or not an employer has established just cause for discipline and interpreting sanctionprovisions of a collective agreement fall within the core jurisdiction of a labour arbitrator. [14] The Union says that in cases falling within its core jurisdiction, considerable deference should be given to the decision of anarbitration board.

On the other hand, the Employer says that the concept of deference does not mean that the court should show blindreverence to decisions of such specialized tribunals. In making this statement, the Employer refers to the following statement of theSupreme Court of Canada at paragraph 48 of Dunsmuir: 48 …What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicialreview. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence totheir

interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing theirown view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and thelaw. The notion of deference "is rooted in

part in a respect for governmental decisions to create administrative bodies with delegatedpowers" (Mossop, [infra], at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that theconcept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which couldbe offered in support of a decision": "The Politics of Deference: Judicial Review and Democracy", in M.

Taggart, ed., The Province ofAdministrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L'Heureux-Dubé J.; Ryan, at para. 49). [15] Orsborn, J., of this Court carried out a comprehensive review of Supreme Court of Canada and Newfoundland and LabradorCourt of Appeal authorities that have applied the standard of reasonableness in reviewing decisions of specialized tribunals. In the caseof Muskrat Falls Employers’ Assn. Inc. v.

Resource Development Trades Council of Newfoundland and Labrador, 2015 NLTD(G) 150(Muskrat Falls, No. 1), Orsborn, J. noted that a reviewing judge is to assess “mostly” the process by which the tribunal reached itsdecision and, secondarily, the outcome itself against what is considered to be a range of “possible acceptable outcomes” (at paragraph17). [16] Further, at paragraph 18, Orsborn, J. noted that there is a clear direction to reviewing courts to attempt to fill in any gaps in thetribunal's reasons. The starting assumption is that the outcome is correct notwithstanding any deficiency in the reasons.

In particular,the court must seek to supplement reasons rather than to subvert them (paragraph 18). At paragraph 21, Orsborn, J. noted that the courtshould be less concerned about the reasoning process than about the actual outcome. He provides the following synopsis of the Court’srole on judicial review at paragraph 25: 25 The Newfoundland and Labrador Nurses' Union decision instructs that if an arbitrator is 'alive to the question at issue', and hascrafted a reasonable outcome, a reviewing court should not interfere.

I take this to mean that if it is apparent that the arbitrator hasunderstood the question raised by the grievance and has answered the question raised by the grievance, an outcome within the range ofreasonable outcomes will be considered reasonable, even in the absence of reasons. [17] In this case, the Union says that the Arbitration Board provided thorough and articulate reasons which allow the Court toclearly understand why the Arbitration Board reached its conclusion.

The Union says that this Court can and should therefore analyzethe Board’s reasons and outcome together, rather than separately, when showing appropriate deference with respect to both theinterpretation of the facts and law. In doing so, the Union says I will come to the conclusion that the Arbitration Board’s decision fallswithin the range of reasonable outcomes.

On the other hand, the Employer says that there was only one reasonable outcome in respect ofthis grievance and that was to uphold the termination of the employee as required by the terms of the contractually negotiatedAgreement. [18] I will therefore now consider the points raised by the Employer in determining whether the Arbitration Board came to anoutcome that was not reasonable in light of the facts and law, recognizing that I must show considerable deference to their findings. ANALYSIS [19] The Employer says that the Policy in question was incorporated into and formed part and parcel of the Agreement.

Inparticular,

Article 38 of the Agreement provides as follows:

ARTICLE 38 DRUG AND ALCOHOL POLICY

The HPEO will confirm to the Union and the employees, by August 1, 2006, the Alcohol and Drug policy applicable on the platform. [ 20 ] It is acknowledged by the parties that the HPEO confirmed the Policy to the Union, as required. The Policy has continued in the Agreement through subsequent rounds of collective bargaining as acknowledged in the Agreed Statement of Facts. [ 21 ] The Employer also refers to a prior decision between the same parties, known as Fitzgerald , which dealt with a breach of the Policy. This decision is cited as Hibernia Platform Employer’s Organization v.

Communications, Energy and Paperworkers Union of Canada, Local 2121 (Fitzgerald Grievance) (Nov. 18, 2014) (Clarke, Chair). In that decision, Arbitrator Clarke noted at page 24 that “it would be difficult to say that this policy has not been agreed to by the Union”. The Arbitration Board referred to the prior Fitzgerald award and also determined that “[t]he policy is incorporated into the Collective Agreement by

Article 38” (paragraph 47). [ 22 ] As a result, both the Employer and the Union agree that the Arbitration Board correctly determined that the policy formed part of the Agreement between the Employer and the Union. The relevant portions of the Policy are set out below: 5.0 Work rules for employees of the HPEO employers 1. In order to minimize the risk of impaired performance due to substance abuse, the following are strictly prohibited for all employees of the HPEO employers: […] (

b) presence in the body of illicit drugs or their metabolites, unprescribed drugs for which a prescription is legally required in Canada or their metabolites, while on HMDC owned or controlled premises; […] 2. Employees are subject to testing for alcohol and specified drugs after a significant incident or a safety incident as determined by management. Post-incident testing will form part of an individualized assessment of the possibility of substance abuse or a substance dependence.

The purpose of this type of testing is to help eliminate substance use as a cause and to determine whether substance use was a possible contributing factor in an incident. It is recognized that a positive post-incident test may not always independently prove that substance use was the “root cause” or a contributing factor in a particular incident. As such, it does not relieve the employer of the obligation to complete a thorough investigation. […] 5.

A positive test result, failure to report for a test, refusal to submit to a test, refusal to consent to disclosure of a test result to management, or an attempt to tamper with a test sample constitutes a violation of this policy. […] 10.0 Consequences of Policy Violation […] If a worker tests positive on any alcohol or drug test required under this policy, refuses to be tested or contravenes 1(

a) through 1(

f) of the Work Rules for employees of the HPEO employers above, the employer must permanently remove the individual from the HMDC platform or site and from HMDC work.

[…]

Definitions […] A “safety incident” is defined to be any incident involving failure of the safety policies and procedures which falls outside the definitionof “significant incident” and which, in the opinion of the supervisor, is serious enough to warrant testing as an investigative tool. [23] The Employer refers to the above provisions of the Policy as specifically allowing it to test for alcohol and specified drugs afteran incident such as the helicopter manifest error.

The Arbitration Board agreed with the Employer that the Incident, involving ahelicopter manifest error, was a safety incident as defined under the Policy. The Union does not contest this finding. [24] The evidence was that the Grievor was employed as a Materials Movement Coordinator on the Hibernia Platform since 1997. Since 2003, he had carried out the duties of a Helicopter Landing Officer on the Platform from time to time. The Helicopter LandingOfficer is the bargaining unit employee who coordinates operations on the Platform heli-deck including landing, loading and unloadingof passengers and baggage.

His duties include creating and overseeing the helicopter manifest and providing it to the helicopter pilot. Assuch, the Grievor was responsible for ensuring that the manifest was accurate. [25] The importance of ensuring the accuracy of the helicopter manifest was explained to the Arbitration Board by the Chief Pilotwith Cougar Helicopters. In considering this evidence, the Arbitration Board concluded as follows: Manifest errors are potentially serious issues, because the helicopter pilot makes operational calculations based on the actual weightrecorded on the manifest.

An accurate manifest is required under Canadian aviation regulations… The [C-NLOPB] Guidelines state thatimproper loading of a helicopter is described as a “near miss” and is required to be reported to the C-NLOPB via the written notificationprocess. [26] All four of the helicopter manifest errors in December 2014 and January 2015 involving flights from the Platform were in factreported to the C-NLOPB. In addition, the Offshore Installation Manager held a safety meeting with the heli- deck crew on January 11,2015 with additional processes being ordered to prevent further incidents from occurring.

It was only when the fourth of these incidentsoccurred on January 13, 2015, two days after the third incident, that management determined that the Incident constituted a “safetyincident”, triggering the threshold under the Policy for post-incident testing. [27] It was acknowledged that drug and alcohol testing showed that the Grievor tested positive for benzodiazepines, includingtemazepam, oxazepam, nordiazepam and lorazepam, all controlled substances within the meaning of the Controlled Drugs andSubstances Act, S.C. 1996, c. 19. These substances could only be obtained with a physician’s prescription.

Further, evidence wasprovided that the level of benzodiazepines in the Grievor’s system were such that he must have taken the banned substances while atwork, onboard the Hibernia Platform, as he had been working on the Platform for eight days. It was undisputed that the Grievor did nothave a prescription for any of these substances.

Non-prescription drugs of any kind, as well as alcohol, are not permitted onboard thePlatform. [28] Despite the Arbitration Board’s acceptance that the Policy was part of the Agreement, that the Incident triggered the thresholdfor testing, and that the test results were positive for prohibited substances, the Arbitration Board found that the Employer could not relyon the test results as a ground for discipline. [29] The Arbitration Board referred to the “KVP test” set out in the Ontario Arbitration decision in Lumber and Sawmill Workers’Union, Local 2537 v.

KVP Co. (1965), (ON LA), 16 L.A.C. 73, 1965 CarswellOnt 618 (Ont. Arb.) (Robinson). Thatdecision dealt with the scope of management’s unilateral rule making authority under a collective agreement.

The heart of that test is thatany rule or policy unilaterally imposed by an employer and not subsequently agreed to by the Union must be consistent with thecollective agreement and be reasonable. [30] In the context of drug and alcohol testing, this KVP test has been consistently applied where employers assert a right to imposerandom drug and alcohol testing through the exercise of a management rights clause in a collective agreement. At paragraph 27 of theSupreme Court of Canada decision in Irving Pulp & Paper Ltd. v.

CEP, Local 30, 2013 SCC 34, the court noted that in assessing KVPreasonableness in the case of unilaterally imposed employer rules or policies that affect employee privacy, arbitrators have used a“balancing of interests” approach.

In describing this balancing of interests approach, the court commented upon occasions whenemployers are generally entitled to test individual employees who work in safety sensitive positions at paragraph 30 as follows: 30 In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitivepositions without having to show that alternative measures have been exhausted if there is "reasonable cause" to believe that theemployee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, orwhere the employee is returning to work after treatment for substance abuse. [31] At page 37 of its decision, the Arbitration Board stated that the Supreme Court of Canada in Irving, while not specificallydealing with post-incident testing on the facts before it, described how the balancing of interests approach is applied to alcohol and drugtesting in cases where testing may be permitted, e.g. where the employee has been directly involved in a workplace accident or

significant incident, even though random testing is not permitted. The Arbitration Board further went on to consider other arbitration awards in Canada that have addressed post-incident testing and the circumstances in which it may be allowed. At pages 38 to 39 of the award, the Arbitration Board stated as follows: …The principles developed by arbitrators, in the post-incident testing cases, have taken into consideration the need to balance the protection of the individual right to privacy, with the employer’s duty to provide a safe workplace.

When the HPEO and the employers on the Hibernia Platform apply the Alcohol and Drug Policy in any individual case, it is necessary to comply with the terms of the Policy, and also to apply the Policy to be consistent with the principles developed in the arbitral authorities.

The Arbitration Board has considered the arbitral authorities, while recognizing that each arbitration case has applied a particular alcohol and drug policy to its own unique fact circumstances. [ 32 ] The Arbitration Board referred with approval to the decision of Arbitrator Francis in Weyerhaeuser Co. and CEP, Local 447 (Kelly), Re , (2012) 225 L.A.C. (4th) 294, 2012 CarswellAlta 2068 (Francis) (the “ Weyerhaeuser (2012)” case) at paragraphs 101 and 102 where the following conditions were set out in order for an employer to carry out post-incident testing: 101 The following conditions must be met in order for the Company to pursue a “reasonable line of inquiry” that leads to post-incident testing: 1.

There must be a connection between the employee’s area of responsibility and the accident. 2. It is necessary to investigate whether the actions or omissions of the employee contributed to or caused the accident. 3. The test must assist in the investigation, at the minimum, by negativing impairment as a possible cause or contributing factor. 4. The incident must be a significant event. 5. The investigation must incorporate the employee’s explanation of the incident. 6.

The decision to test must be based on a connection between the incident and the employee to be tested. 102 Once these conditions are met, the Company must balance its interest in investigating the incident against the privacy and bodily integrity interests of the employee who is to be tested for drug and alcohol use.

At minimum, the decision maker must be able to demonstrate that he or she has considered the impact of mandatory testing on the employee, and has determined that, all circumstances considered, the need to test for drug and alcohol use outweighs the employee’s privacy interest. [ 33 ] The Arbitration Board found that the written requirements for post-incident testing in the Policy are: (1) a significant incident or safety incident as determined by management; (2) that testing is part of an individualized assessment of the possibility of substance abuse or substance dependence; (3) that testing is for the purpose of helping eliminate substance use as a cause and to determine whether substance use was a possible contributing factor in an incident.

As such, the Arbitration Board found that the Policy incorporated some requirements that were discussed in the arbitral authorities, but did not specifically address others. In particular, at page 42, the Arbitration Board determined that the Policy incorporated a requirement that the post-incident testing must be triggered by a significant “incident” or “safety incident”; that the purpose of testing is to eliminate substance use by the employee as a cause of the incident; and that there must be a link between the person tested and the incident.

However, the Arbitration Board found later at page 42 that the application of the Policy must also be subject to other requirements set out in the arbitral authorities including (1) an investigation that considers the likely cause of the incident and whether the employee’s actions contributed to the incident; (2) an investigation that includes the employee’s explanation of the incident; and (3) the exercise of managerial discretion having regard to all the circumstances of the case and the fact that testing is an invasive procedure. [ 34 ] The Arbitration Board applied both the contractual and arbitral authority requirements and found that the alcohol and drug testing of the Grievor did not meet the requirements of a valid test based on the language of the Policy and the requirements of arbitral authorities. [ 35 ] In particular, at paragraph 2 of page 46, the Arbitration Board found the testing was not valid for the following reasons: There were reasonable explanations for the January 13, 2015 manifest discrepancy without the need to conduct alcohol and drug testing as a reasonable line of inquiry.

The other explanations included the actions of the passenger who misplaced his bag at the top of the emergency stairwell, and the fact that procedures designed to improve loading operations and eliminate manifest discrepancies, such as the new Check List, were not operational on January 13, 2015. The Board concludes that the alcohol and drug test of the Grievor was ordered without consideration of the explanation that errors in process had not been corrected, without an explanation from the Grievor, and without sufficient reason to link the Grievor’s actions to the incident.

There was not sufficient information to establish a possible link between substance use by the Grievor and the cause of the incident. It was not appropriate to order the test in the exercise of

managerial discretion. Therefore, the test did not comply with

Section 5.0 (2) of the Alcohol and Drug Policy, based on the language ofthe Policy and the requirements of the arbitral authorities. [36] The Employer takes the position that additional arbitral authority requirements cannot be imposed upon it as the requirementsare not contained in the contractual Policy.

The Employer says that these requirements set out in arbitral jurisprudence are onlyapplicable to cases in which management has unilaterally imposed such a policy. [37] The Employer refers to paragraph 53 in Irving and notes that the Supreme Court of Canada was commenting on the actions ofan employer who carried out drug or alcohol testing under a unilaterally imposed random drug and alcohol testing policy.

It found thatsuch actions would likely not be upheld in the absence of reasonable cause, including the requirement to investigate and seek anexplanation from the affected employee, because the policy would not survive arbitral scrutiny. However, immediately before thatstatement, the court recognized that a union and employer could negotiate a random drug and alcohol testing policy.

Paragraph 53 isreproduced below: 53 Moreover, the employer is not only always free to negotiate drug and alcohol testing policies with the union, as was said inNanticoke, “such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated” (para. 101 (emphasisadded)).

But where, as here, the employer proceeds unilaterally without negotiating with the union, it must comply with the time-honoured requirement of showing reasonable cause before subjecting employees to potential disciplinary consequences… [38] In this case, the Employer says the Union and the Arbitration Board both agreed the Policy is part of a negotiated collectiveagreement. The Employer says that if the Union had wished to include additional requirements it could have sought to negotiate them insubsequent rounds of collective agreement bargaining after the Policy was provided to it.

The Employer says that, once the partiesimported the Policy into the Agreement, it constituted a binding contract with the balancing of interests having already occurred. In suchcircumstances, incorporating additional requirements into the drug and alcohol testing provisions of the Agreement defies logic. [39] The Employer provides the following example which it says demonstrates the flaws in the reasoning of the Arbitration Board.

It says that if one were to apply the logic of the Arbitration Board to a situation where the Agreement contained a random drug andalcohol testing policy, incorporating all arbitral requirements applicable to unilaterally imposed drug and alcohol testing policies wouldmean that unions and employers could never truly be free to negotiate such a random drug and alcohol testing policy. [40] The Union, on the other hand, agrees with the Employer that the Policy was part of the 2006 Collective Agreement and hasbeen in place without challenge since that time.

The Union further agrees that the Policy was consistent with the Agreement and therequirements set forth in KVP, as set out in the Agreed Statement of Facts between the parties, and recognized by the Arbitration Board. However, the Union submits that the Arbitration Award is not inconsistent with its finding that the Policy was valid and forming part ofthe Agreement.

It also says the Arbitration Award is not inconsistent with the findings in Fitzgerald respecting the importance of safetyin the offshore. [41] The Union characterizes the issue that was before the Arbitration Board as a dispute as to how the Policy was applied by theEmployer in the individual case before it. In determining whether the Policy was appropriately applied, the Arbitration Board reliedupon the requirements set out in the arbitral authorities relating to the application of post-incident testing policies.

In doing so, theUnion says the Arbitration Board did not undermine, invalidate or rewrite the Policy. [42] The Union says the Board fully considered Irving in its decision making process and, in particular, acknowledged that theSupreme Court of Canada approved post-incident testing in that decision, citing a line of arbitral authority which discussed thedevelopment of post-incident testing. This line of arbitral authority included Fording Coal Ltd. v. U.S.W.A., Local 7884, (2003) (BC LA), 119 L.A.C. (4th) 165, 74 C.L.A.S. 189 (B.C. Arb.), Weyerhaeuser v. C.E.P., Local 447, [2006] A.G.A.A.

No. 48, 154 L.A.C. (4th) 3, (Alb. Arb.), Canadian National Railway Company and Teamsters Canada Rail Conference (2013), 117 C.L.A.S. 289, 240 L.A.C. (4th) 95, CNR Office of Arbitration & Dispute Resolution and Weyerhaeuser (2012). [43] The Union also submits that the Arbitration Board did not ignore the finding of the Supreme Court of Canada in Irving to theeffect that the parties to a collective agreement are free to negotiate a policy which may include any type of testing to which the partieshave validly agreed.

The Union submits that the argument of the Employer is principally based upon a flawed focus on an analysis ofthe Policy as opposed to the application of the Policy to the facts before the Arbitration Board. The Union refers to page 36 of theArbitration Award in which the Arbitration Board clarifies that the test was invalid because of how the Employer applied the Policy asopposed to the Policy itself being invalid. In particular, the Arbitration Board stated as follows: Although the validity of the Alcohol and Drug Policy is not at issue, the application of the Policy is in dispute.

It is helpful to theBoard’s consideration of the application of the Policy to consider how arbitrators have applied alcohol and drug policies in other cases. The Board will review the arbitral authorities in that regard. [44] The Union says that external criteria was only brought into consideration by the Arbitration Board in examining how theEmployer applied the Policy as opposed to assessing the validity of the Policy.

The Union refers to paragraph 72 of Weyerhaeuser(2012) to support its position that the fact that a valid policy exists does not mean that there is a valid application of the policy in everyinstance: 72 To begin, the existence of a valid policy does not necessarily create a valid application of the policy: Both Arbitrator Hope in the Fording policy grievance and Arbitrator Taylor in the subsequent Weyerhaeuser final policy grievance makeimportant observations about the appropriate scope of a policy grievance in assessing the general validity of a policy compared tosubsequent cases that deal with the application of that policy to particular circumstances.

That analysis needs noting; (

a) because this isan application case under the policy addressed by Arbitrator Taylor and (

b) because there is a danger of assuming that if a policy has

"passed policy grievance" then its terms can thereafter be applied literally and mechanically. This is not the case as both arbitrators madeclear in their reasons. In application cases, the Employer must still justify its actions under the policy using a balancing of interestsapproach. [45] At page 40 of the Arbitration Award, the Arbitration Board referred with approval to paragraph 206 of Weyerhaeuser (2006)pointing out that arbitral principles apply to the application of a policy in a particular case, separate and distinct from any consideration ofthe reasonableness of the policy.

These principles are based on application of the right to privacy and are consistent with the values inthe Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK),1982, c. 11. As a result, prior arbitral awards remain instructive in application cases where management maintains a degree of discretionin determining when and how a policy is applied. [46] In response, the Employer’s position seems to be that, because this is a Policy that forms part of the Agreement, allrequirements to be met by the Employer before carrying out testing must be determined solely on the basis of the wording of the Policy.

The Employer asserts that it is clearly agreed in the Policy that management may test for alcohol and drugs after it has made adetermination that a safety incident or significant incident has occurred. It says this is the only element of managerial discretion in thePolicy.

The relevant Policy language is as follows: Employees are subject to testing for alcohol and specified drugs are a significant incident or a safety incident as determined bymanagement. (emphasis added). [47] The Employer says that the exercise of managerial discretion in applying a reasonable policy, which a contractually negotiatedPolicy is deemed to be, must not be done in an arbitrary, discriminatory, or bad faith manner. As set out at paragraph 42 of ConstructionLabour Relations Association (Alberta) v.

United Brotherhood of carpenters and Joiners of America, Locals 1325 & 2103 (Hewitt) (2001), (AB GAA), 96 LAC (4th) 343 (Beattie), an employer, in applying a negotiated policy, must act in a “bonafide objective manner”. [48] In this case, the Arbitration Board expressly found that the Incident did trigger the right to conduct alcohol and drug testing. As such, management acted in a bona fide objective manner in testing under the Policy.

The Employer says the analysis of the exerciseof managerial discretion ought to have ended there. [49] The Employer asserts that reading in the additional requirements from arbitral authorities that is not present in the language ofthe Policy and then determining whether management exercised appropriate discretion in respect of them in effect amounts todisallowable redrafting of the Policy. The Employer asserts that this approach to the Arbitration Award was not reasonable and warrantsinterference from this Court. [50] The Employer refers to the concurring decision of Justice Rowe (as he then was), in N.A.P.E. v.

Newfoundland (TreasuryBoard), 2003 NLCA 61, at paragraph 33 wherein he emphasized the inappropriateness of rewriting language in the collective agreement“in the guise of interpreting and applying it”. In that case, an arbitration board had imposed a duty on management to inform employeesof their right to union representation before meeting on a potential discipline issue despite a lack of language to that effect. Justice Rowefound that such a duty was imposed by the arbitration panel because it believed such a duty should be there.

This went beyondinterpreting and applying what is in a collective agreement. [51] The Employer also refers to a decision of Justice Green, who was then sitting as a trial judge in Newfoundland (TreasuryBoard) v.

N.A.P.E. (Medical Certificate Grievance) (1996), (NL SC), 138 Nfld. & P.E.I.R. 128, 60 A.C.W.S. (3d)1166 (Nfld. (T.D.)), which stands for the position that it is not appropriate for an arbitration board to rewrite a collective agreement tochange its meaning and effect, even where that effect may be unusual or anticipated. [52] In this case, the Arbitration Board respected that the Policy itself was valid, forming part of the Agreement between theEmployer and the Union.

The Arbitration Board accepted that it was explicitly agreed in the Policy that a safety incident or significantincident, as defined in the Policy, would trigger the right of the Employer to subject employees to testing. The Policy was furtherexplicit that it was the Employer who had the discretion to determine whether an event amounted to such an incident. This appears to bea recognition of the paramount importance of safety in the offshore work environment.

The Arbitration Board did not find any fault inmanagement’s exercise of that discretion and did not attempt to impose its own assessment of whether the Incident triggered theapplication of the Policy. It did not apply arbitral authority to interpret or undermine the Policy in that regard. [53] However, the Arbitration Board viewed the focus of

section 5.0(2) of the Policy as an agreement on when an incident triggeredthe threshold for testing. It found the Policy did not address many of the other requirements that came out of arbitral authorities. Theserequirements largely related to how the Employer is to apply a post-incident testing Policy. In particular, the Arbitration Board notedthat the Policy did not address whether the Employer was required to (

i) investigate possible causes before testing the affected employee;(ii) examine whether there was any link between the person tested and the incident; or (iii) consider whether the testing was a reasonableline of inquiry. It also did not address whether there was a requirement on the Employer to exercise discretion having regard to all thecircumstances of the case and the fact that testing is an invasive procedure.

The reasons reveal the Arbitration Board found theEmployer had not validly exercised its discretion in respect of these application requirements. [54] However, the Employer says that to incorporate those arbitral requirements flies in the face of the wording of the Policy whichmakes it clear that post-incident testing is “part of the assessment”. It may be used to “help eliminate substance use as a cause” and toassist in determining whether “substance use was a possible contributing factor”. It says this indicates the testing does not need to awaitany investigation.

However, notwithstanding the clear language, the Arbitration Board read in the following additional requirementswhich must be met prior to testing:

a) The employer must conduct an investigation that considers the likely causes and whether the employee’s actions contributed to the

incident; and

b) an investigation which includes the employee’s explanation of the incident. [ 55 ] The Employer says that imposing those requirements is in direct conflict with the Policy, as it requires the investigation to be conducted – or even concluded – prior to ordering substance testing. It says that conflicts with the wording that permits testing to be “part of the assessment” and to be used to determine whether substance abuse was a “possible contributing factor”.

The requirements imposed by the Arbitration Board suggest that the circumstances need to be conclusively evaluated prior to testing, and the likely causes and the role of the employee determined first.

The Employer says that imposing these requirements is in effect rewriting the language of the Collective Agreement, “in the guise of interpreting and applying it”. [ 56 ] The Employer also says there is a significant and pragmatic problem with the requirements implied by the Arbitration Board as the decision to conduct a drug and alcohol test must be made quickly, so that any evidence of substances is not lost to time, and to allow the results to form “part of the assessment”. It is not feasible to require the Employer to conduct a lengthy investigation (i.e. interviews) prior to ordering post-incident testing.

The Employer says in this case, the Arbitration Board concluded that an investigation should have been carried out before substance testing can be requested, an impractical requirement that is not contained in the Policy. Rather, the Policy allows for testing to be part of the investigation .

The Employer says that doing otherwise would jeopardize the integrity and accuracy of the test results, particularly in respect of a breathalyser test, where even one hour’s delay can have a substantial impact. [ 57 ] The Employer says that by importing a requirement of interviews prior to allowable post -incident testing, the Arbitration Board has effectively found that a member of management must have reason to believe (based on the interview, presumably) that a substance contributed to the Incident.

The Employer says the Arbitration Board has grated the concept of “reasonable cause” – an entirely separate ground on which an employer may request substance testing – onto the post-incident framework set out in the Policy. The Employer asserts this finding by the Arbitration Board was not reasonable and cannot be sustained. [ 58 ] As noted earlier in this decision, the Employer relied heavily on the Supreme Court of Canada’s comments in Irving that gave effect to the principle that employers and unions are always free to negotiate what may even amount to random drug and alcohol testing.

Clearly, such a negotiated agreement would not contain the requirements courts and arbitral authorities have imposed in respect of policies unilaterally imposed by an employer. [ 59 ] However, it is important to note that in Irving , at paragraph 53, the court quotes with approval from Imperial Oil Ltd. v. C.E.P., Local 900 , (2006), 157 L.A.C. (4 th ) 225, 88 C.L.A.S. 273 (Ont. Arb.) that such an extraordinary incursion into the rights of employees “must be expressly and clearly negotiated”.

Looking at the Policy, could it be said that all aspects and conditions attached to such an extraordinary infringement on the rights of employees, including how the Policy is to be applied, have been expressly and clearly negotiated?

Is an Arbitration Board not allowed to use arbitral principles consistent with employees’ privacy rights and Charter values in respect of the application of the Policy? [ 60 ] The Arbitration Board thoroughly reviewed the Policy, commenting on the stated purpose of the Policy, i.e. to help eliminate substance use as a cause and to determine whether substance use was a possible contributing factor in an incident. It also noted the statement in the Policy that the testing was to form part of an individualized assessment. The Policy also contains statements suggesting the need for an investigation.

In particular, it says that the Employer is not relieved of the obligation to complete a thorough investigation because a positive post-incident test may not always independently prove that substance use was the “root cause” or contributing factor in a particular incident. These provisions of the Policy setting out its purpose and referencing investigation by the Employer suggest the exercise of managerial discretion in determining how and when the Policy is to be invoked as part of an assessment and investigation.

This could suggest that not all aspects of how the Policy is to be applied in a post-incident testing situation have or could be dealt with in the Policy. [ 61 ] While not explicitly stated this way in the Arbitration Award, the reasoning of the Arbitration Board reveals that it found that the Policy, while a contractual policy, did not represent an expressly and clearly negotiated policy governing all aspects of how it was to be applied. This was not unreasonable based upon the law as noted above and the wording of the Policy.

As such, the Arbitration Board applied the same approach adopted by arbitration panels and courts who interpreted and applied post-incident testing policies that had already survived a policy grievance and could therefore be validly invoked by management. In essence, in those cases, the right of management to test after a significant incident was an acknowledged right of management but how that right was applied in individual circumstances was subject to other requirements.

Management’s discretion as to how the Policy was applied was therefore subject to review for compliance with those requirements. [ 62 ] I do not interpret the comments of the Supreme Court of Canada in Irving as prohibiting the Arbitration Board from using arbitral authorities relating to the application of employer-imposed policies that have withstood arbitral challenge to determine whether the Employer has validly applied a contractual Policy to the circumstances of the grievance before it.

I have also not been referred to other authorities to that effect. [ 63 ] The reasons of the Arbitration Board do not indicate that it went beyond interpreting and applying what is in the collective agreement. The Arbitration Award is therefore distinguishable from the cases referred to by the Employer where courts found impermissible imposition of requirements. In N.A.P.E. v. Newfoundland (Treasury Board) , the Newfoundland and Labrador Court of Appeal was considering a case where a requirement was explicitly read into a collective agreement where it did not exist.

In that case, there was no contractual policy that was being interpreted or applied. In the decision of Justice Green in Newfoundland (Treasury Board) v. N.A.P.E. , the Court was able to find that the contractual term being interpreted and supplemented by the arbitration panel was clear, straightforward and simple on any factual scenario. No ambiguity existed and it was not a case in which the court was reviewing how a policy was applied by an employer. [ 64 ] I would note that I may have decided that the Arbitration Board acted unreasonably in determining that the Employer

conducted an invalid test if the Policy had (

i) explicitly stated that the Employer was not obligated to commence any investigation or seek an explanation of the cause or possible contributing factors in a safety incident or significant incident before the testing; or (ii) that the Employer had sole and absolute right to determine whether, when and to whom, such testing would be applied after a safety incident or significant incident. However, the Policy does not clearly or expressly state this.

As such, it was not unreasonable for the Arbitration Board to use requirements emanating from arbitral authority to determine whether the Policy was appropriately applied in the circumstances before it. [ 65 ] Applying those application requirements to the facts before it, the Arbitration Board concluded that the test was ordered without consideration of the explanation that process errors identified just days earlier had not been corrected, without an explanation from the Grievor, and without sufficient reason to link the Grievor’s actions to the Incident.

The Arbitration Board found there was insufficient information to establish a possible link between substance use by the Grievor and the cause of the Incident. As a result, it found that, applying the arbitral authority requirements, it was not appropriate to test in the exercise of managerial discretion. [ 66 ] I also note that there was no suggestion that the Arbitration Board made incorrect factual findings. On the facts before it, the Arbitration Board found that the Employer could have and should have asked the employee for an explanation.

It also found the Employer could and should have conducted a minimal investigation as to the likely cause and whether the employee’s actions contributed to the Incident. These findings did not result in the Arbitration Board turning this into the higher test for “reasonable cause” testing. Its findings were further not impractical in the circumstances. There were only 8 employees who were tested. It would not have caused a significant delay to ask questions of such a small number of persons. As well, the Employer had previously identified a process correction to prevent manifest errors only days earlier.

Requiring the Employer to ask questions to see if this was the cause of the manifest error does not amount to a requirement that the Employer conclusively evaluate likely causes before testing. It merely requires minimal steps to be taken by the Employer to establish a possible cause or link and thereby make a decision to apply the Policy. [ 67 ] Overall, I find that the Arbitration Board’s decision was one of the possible reasonable findings for it to make based on the facts and law. The Arbitration Board’s analysis, together with its legal and factual conclusions, was within the range of acceptable outcomes.

Further, its reasons were justifiable, transparent and intelligible. [ 68 ] The Employer’s final point was that the Arbitration Board acted unreasonably in ordering reinstatement of the Grievor as the Policy dictated that removal from the Platform was the only remedy available to the Employer pursuant to the Policy. The Employer refers to the following provision in the Policy: 10.0 Consequences of Policy Violation […] If a worker tests positive on any alcohol or drug test required under this policy, refuses to be tested or contravenes 1 (

a) through 1 (

f) of the Work Rules for employees of the HPEO employers above, the employer must permanently remove the individual from the HMDC platform or site and from HMDC work. [ 69 ] The Employer refers to section 88(2) of the Labour Relations Act which reads as follows: 88.

(2) Where an arbitration board determines that an employee has been discharged or disciplined by an employer for cause, it may, except when the penalty is prescribed in the collective agreement that is binding upon the employees and employer, review and modify the penalty imposed by the employer and, in the case of the discharge of the employee, substitute another penalty that to it seems just and reasonable in the circumstances. (emphasis added) [ 70 ] Of course, this submission rests on a determination that the drug test results were properly obtained pursuant to the Policy, therefore providing cause for the Employer to discharge or discipline the employee.

The Arbitration Board found that the Employer could not rely on alcohol and drug testing obtained in violation of the Policy to invoke the disciplinary action of requiring the employee’s removal from the Platform. As such, it said that the Employer could not rely on the results as a ground for discipline. The Arbitration Board concluded as follows, at paragraph 3 of page 46: The effect of a finding that the test did not meet the requirements of a valid test, is that the result of the test cannot be considered as grounds for discipline, pursuant to the Alcohol and Drug Policy.

It is unnecessary to consider the evidence regarding prescription drug use, the Grievor’s drug test result, or the expert evidence regarding level of impairment. Therefore, in the absence of a valid drug test result, the HPEO has not proven that the Grievor violated the Alcohol and Drug Policy. The grievance of Gary Carroll will be allowed.

The Board will direct that Gary Carroll be reinstated in employment with compensation in an amount to be determined. [ 71 ] Given my finding above that the decision of the Arbitration Board that the Employer invalidly applied the Policy was not unreasonable, it was not unreasonable for the Arbitration Board to have excluded the test results in determining whether the Employer was entitled to remove the employee from his employment. CONCLUSION [ 72 ] Overall, the Arbitration Board was alive to the question at issue. Its decision was not unreasonable and was within the range of possible and acceptable outcomes.

The Application for certiorari is therefore denied. The Respondent shall be entitled to its costs to be taxed on a party and party basis under Column 3 of the Scale of Costs pursuant to the Rules of the Supreme Court, 1986 .

_________________________ Rosalie McGrath Justice