2018 NLCA 45, 2018 NLCA 45

Hibernia Platform Employers’ Organization (appellant) v. Communications, Energy and Paperworkers Union, Local 2121 (Unifor) (respondent) (18/07) Indexed As: Hibernia Platform Employers’ Organization v. Communications, Energy and Paperworkers Union (Unifor, Local 2121) 2018 NLCA 45 3 C.A.N.L.R. 202 Court of Appeal of Newfoundland and Labrador Welsh, Barry and White JJ.A. July 24, 2018

Summary: After an incident related to mistakes in loading baggage onto a helicopter carrying employees, a safety investigation was undertaken at the Hibernia offshore oil platform, as required under the collective agreement. Eight employees submitted to drug testing. One of these had his employment terminated when he tested positive for unauthorized drugs. Following a grievance by the Union, an arbitration board reinstated the employee. The arbitration board concluded that the drug test did not comply with the Policy and, therefore, did not provide grounds for discipline.

The Employer’s application for judicial review of the arbitration board’s decision was dismissed. The Employer appealed that decision. Held: Appeal dismissed. Welsh J.A. (Barry and White JJ.A. concurring): The parties agree that the Board’s decision is reviewable on a standard of reasonableness. The Board’s decision in this case involves

interpretation of the Policy that forms part of the collective agreement, a matter falling within the Board’s mandate. The Employer submits that the Board’s decision was unreasonable because the

interpretation of the Policy resulted in an interference with management’s right to order drug testing under the collective agreement. In assessing the language of the Policy, together with its purpose, the Board was satisfied that, in applying the Policy in a particular situation, factors considered in arbitral authorities would assist in assessing whether impairment by drugs or alcohol may have contributed to a significant or safety incident.

While drug or alcohol testing is an investigative tool available to management, it was not unreasonable for the Board to interpret the Policy so as to require management to take initial steps to be satisfied that ordering certain employees to undergo drug or alcohol testing would, indeed, be indicated. In reviewing the Board’s decision, the applications judge provided a comprehensive analysis, applying the appropriate considerations and standard of review. Both the Board and the applications judge gave comprehensive reasons for their decisions.

The judge did not err in concluding that the Board’s decision allowing the termination grievance was reasonable. The appeal must be dismissed. Cases cited: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. , 2013 SCC 34 , [2013] 2 S.C.R. 458 Terra Nova Employers’ Organization v. Communications, Energy and Paperworkers Union, Local 2121 , 2018 NLCA 7 Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654

Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 Counsel: Stephen F. Penney and Ruth E. Trask, for the appellant; Ian S. Patey, for the respondent. This appeal was heard on June 29, 2018 before Welsh, Barry and White JJ.A.

The following judgment was delivered on July 24, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] As a result of an incident relating to helicopter safety on the Hibernia offshore oil platform, an investigation was undertaken as required under the collective agreement. Eight employees submitted to drug testing. One of these had his employment terminated when he tested positive for unauthorized drugs. Following a grievance by the Union, an arbitration board reinstated the employee.

The Employer’s application for judicial review of the arbitration board’s decision was dismissed. The Employer appeals that decision. BACKGROUND [ 2 ] The collective agreement between the Hibernia Platform Employers’ Organization (the “Employer”) and the Communications, Energy and Paperworkers Union of Canada, Local 2121 (the “Union”) incorporates a drug and alcohol policy (the “Policy”).

When an event that qualifies as a significant incident occurs, the Employer may require an investigation which may include drug testing. [ 3 ] The incident in this case related to mistakes in loading baggage onto a helicopter carrying employees between the platform and the land base. Because transport by helicopter involves a particular level of danger, employees are required to comply strictly with all relevant policies and practices. The investigation in this case was ordered by the Employer following four errors in helicopter baggage manifests occurring during a period of five weeks.

The Agreed Statement of Facts describes these: 9. In December 2014 and January 2015, there were a series of helicopter manifest errors involving flights from the Platform. On December 6, 2014, there was an extra piece of baggage on the inbound leg (Incident number 2014C013). On December 22, 2014, there was a missing piece of baggage on the inbound leg (Incident number 2014C014). On January 11, 2015, there were two missing pieces of 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 manifest error was that a 24 lb. bag was indicated as being present on the manifest, but it had not actually been loaded on the helicopter. … 12. As a result of the incident, and the prior manifest errors, the Offshore Installation Manager directed the heli-deck crew to undergo post-incident testing for drugs and alcohol. The heli-deck crew was comprised of [the grievor] (helicopter loading officer), 6 deck hands, and one non-unionized supervisor. All eight employees took the test.

The parties agreed that the helicopter manifest error constituted a “significant incident” as defined in the Policy. [ 4 ] The Union filed two grievances, which are described in the arbitration board’s decision, at page 2: The Union filed two grievances, an individual grievance alleging unjust termination of the employment of [the grievor], and a policy grievance alleging alcohol and drug testing without just cause. … [The grievor] was terminated from employment after a positive drug test for benzodiazepines. The Union seeks the reinstatement of the Grievor in his employment.

The Union also filed a policy grievance alleging that [the Employer has] been conducting post-incident testing with such frequency that it amounts to random testing. The Union seeks a declaration to limit drug and alcohol testing. The [Employer] requests that both grievances be denied. [ 5 ] The arbitration board (the “Board”) denied the policy grievance having found that the post-incident testing did not amount to random testing.

Regarding the termination grievance, the Board summarized, at page 46: … 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 of the Policy and the requirements of the arbitral authorities. [ 6 ] Because the Board concluded that the drug test did not comply with the Policy and, therefore, did not provide grounds for discipline, the termination grievance was allowed. On judicial review, the applications judge concluded that the Board’s decision was not unreasonable. [ 7 ] The Board’s determination that post-incident testing under the Policy did not amount to random testing is not under appeal.

Further, the Union agrees that, if the Employer’s appeal is successful, the grievor’s employment was properly terminated. ISSUES [ 8 ] At issue is whether the Board’s

interpretation of the Policy was unreasonable on the basis that it resulted in an interference with management’s right to order drug testing in accordance with the Policy under the collective agreement, and that the decision altered the collective agreement by adding language and factors taken from arbitral authorities. ANALYSIS Standard of Review [ 9 ] The parties agree that the Board’s decision is reviewable on a standard of reasonableness. That view is consistent with the discussion in Communications, Energy and Paperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd. , 2013 SCC 34 , [2013] 2 S.C.R. 458 , in which Abella J., for the majority, reiterated: [16] In my respectful view, the Court of Appeal erred in disregarding this Court’s direction that decisions of labour arbitrators be reviewed for reasonableness and that deference be paid to their legal and factual findings when they are interpreting collective agreements. … See also: Terra Nova Employers’ Organization v. Communications, Energy and Paperworkers Union, Local 2121 , 2018 NLCA 7 , at paragraphs 11 to 13 . [ 10 ] The Board’s decision in this case involves

interpretation of the Policy that forms part of the collective agreement, a matter falling within the Board’s mandate. There is no basis on which to conclude that the questions before the Board would fall into a category to which the standard of correctness would apply ( Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [ 2011] 3 S.C.R. 654, at paragraph 30). It follows that the appropriate standard of review, and the one that was applied by the applications judge, is reasonableness. [ 11 ] The approach to assessing reasonableness is discussed in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 . Bastarache and LeBel JJ. concluded: [47] … A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 12 ] In this case, the Employer submits that the Board’s decision is unreasonable based largely on the reasons given by the Board for reaching its conclusion. In Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 , Abella J., for the Court, referred to the relationship between reasons and outcomes: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses – one for the reasons and a separate one for the result … .

It is a more organic exercise – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes . This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). (Emphasis added.)

Interpretation of the Policy [ 13 ] The Employer submits that the Board’s decision was unreasonable because the

interpretation of the Policy resulted in an interference with management’s right to order drug testing under the collective agreement, and it altered the collective agreement by adding language and factors taken from arbitral authorities. [ 14 ] The Policy addresses issues related to impairment by drugs or alcohol and the testing of employees in clause 5.0, which provides, in relevant parts: 1. In order to minimize the risk of impaired performance due to substance abuse, the following are strictly prohibited for all employees of [the Employer]: … (

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 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. [Italics in original.] … 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.

Failure to comply with the above will result in termination of employment (clause 10.0 of the Policy). [ 15 ] After setting out the facts of the case and the positions of the parties, the Board reviewed several arbitral authorities, concluding at pages 41 to 42: The arbitral authorities discuss the requirement for management to balance the need for testing with the employee’s privacy interests.

In effect, the authorities state that there is managerial discretion whether or not to test, and in the exercise of that discretion, managers should weigh all the circumstances, and consider that testing is an invasive procedure, before ordering a test. The [Policy] refers to post-incident testing in

Section 5.0(2). The 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, and (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.

The Policy incorporates requirements that are discussed in the arbitral authorities, such as Weyerhaeuser 2006 , namely (1) the type of incident as a significant incident or safety incident, (2) the purpose of testing is to eliminate substance use by the employee as a cause of the incident, and (3) there is a link between the person tested and the incident. The Policy does not specifically state other requirements discussed in the arbitral authorities.

The application of the Policy is also subject to these requirements , including an investigation that considers the likely causes of the incident and whether the employee’s actions contributed to the incident, an investigation that includes the employee’s explanation of the incident, and the exercise of managerial discretion having regard to all the circumstances of the case. (Emphasis added.) [ 16 ] Applying the above considerations, the Board concluded, at page 46: 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 [Policy], based on the language of the Policy and the requirements of the arbitral authorities. [ 17 ] The underlying rationale for this conclusion is set out at pages 45 to 46: [The Offshore Installation Manager] made the decision to test the Grievor and all members of the heli-deck crew based on information provided by [the Platform Services Supervisor]. [The Offshore Installation Manager] did not personally speak to the Grievor or any member of the heli-deck crew before making the decision to order the test. [The Platform Services Supervisor] did not obtain a statement of the Grievor’s explanation for the purpose of his report to [the Offshore Installation Manager]. [The Offshore Installation Manager] and [the Platform Services Supervisor] assumed that the new Check List was in place on January 13, 2015.

However, [the Platform Services Supervisor] did not confirm to [the Offshore Installation Manager] that the Check List was in fact in place. [The Offshore Installation Manager’s] assumption about the Check List was in error, based on the evidence presented at the arbitration hearing. Testing was not justified solely by the fact there was another manifest error. The facts of each incident need to be investigated to determine whether testing is appropriate. The Board was referred to a document headed “Final – Expectations of Post Incident A & D Testing”.

This document sets out the description of incidents that are subject to testing. It also directs the person using the document to the [Policy].

The Board notes that this document focuses on the threshold incident for testing, and does not list any other requirements, such as an investigation to determine possible cause, whether there is any link between the person tested and the incident, whether testing is a reasonable line of inquiry, and the need to exercise discretion having regard to all the circumstances of the case and the fact that testing is an invasive procedure. [ 18 ] It is clear from the Board’s decision that the application of the Policy to order drug testing requires an individualized assessment.

I would take from this that, if there is some urgency in undertaking alcohol or drug testing in a particular case, this would be taken into account when determining the extent of investigation to be undertaken before making the order.

The Board did not suggest that the investigation must be complete or extensive before alcohol and drug testing is ordered. [ 19 ] The Employer submits that the Board’s decision is unreasonable because requirements gleaned from arbitral authorities involve a balancing of interests that has already been taken into account in the language of the Policy, and that arbitral authorities relied upon by

the Board are distinguishable on the basis that they dealt with drug and alcohol testing where there was no policy in place under a collective agreement. The Employer further submits that the Board’s decision alters the clear language of the Policy by imposing additional requirements that interfere with managerial rights. [ 20 ] These submissions are not persuasive when the Board’s decision is read as a whole.

In assessing the language of the Policy, together with its purpose, the Board was satisfied that, in applying the Policy in a particular situation, factors considered in arbitral authorities would assist in assessing whether impairment by drugs or alcohol may have contributed to a significant or safety incident. While drug or alcohol testing is an investigative tool available to management, it was not unreasonable for the Board to interpret the Policy so as to require management to take initial steps to be satisfied that ordering certain employees to undergo drug or alcohol testing would, indeed, be indicated.

The extent of investigation necessary before ordering testing would depend on the particular circumstances. [ 21 ] In reviewing the Board’s decision, the applications judge provided a comprehensive analysis, applying the appropriate considerations and standard of review. The judge’s

summary, applying the Board’s analysis to the individual grievance is instructive ( 2018 NLSC 1 ): [66] … 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. [ 22 ] Applying the Dunsmuir analysis, the judge concluded: [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. [ 23 ] Both the Board and the applications judge gave comprehensive reasons for their decisions. The judge correctly applied the Dunsmuir analysis and did not err in concluding that the Board’s decision allowing the termination grievance was reasonable. As noted above, the Board’s decision that post-incident testing under the Policy did not amount to random testing was not at issue in this appeal.

DISPOSITION [ 24 ] For the above reasons, I would dismiss the appeal, with costs in accordance with column 3 of the scale of costs under the Court of Appeal Rules . Appeal dismissed.