POWER WORKERS’ UNION, SOCIETY OF UNITED PROFESSIONALS, THE CHALK RIVER NUCLEAR SAFETY OFFICERS ASSOCIATION, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 37, CHRIS DAMANT, PAUL CATAHNO, SCOTT LAMPMAN, GREG MACLEOD, MATTHEW STEWART v. THOMAS SHIELDS, 2023 FC 793

Date: 20230606 Docket: T-1222-21 Citation: 2023 FC 793 Toronto, Ontario, June 6, 2023 PRESENT: Mr. Justice Diner BETWEEN: POWER WORKERS’ UNION, SOCIETY OF UNITED PROFESSIONALS, THE CHALK RIVER NUCLEAR SAFETY OFFICERS ASSOCIATION, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 37, CHRIS DAMANT, PAUL CATAHNO, SCOTT LAMPMAN, GREG MACLEOD, MATTHEW STEWART AND THOMAS SHIELDS Applicants and ATTORNEY GENERAL OF CANADA, ONTARIO POWER GENERATION, BRUCE POWER, NEW BRUNSWICK POWER CORPORATION AND CANADIAN NUCLEAR LABORATORIES Respondents Table of Contents I. Overview 3 II. Background 3 A.

The development of the RegDoc 5 III. Issues and Standard of Review 9 IV. Analysis 19 A. Applicability of the Charter 20 B. The pre-placement and random testing provisions of the RegDoc do not infringe

section 8 of the Charter 23 Step 1: The pre-placement and random testing provisions engage

section 8 27 Step 2: The pre-placement and random testing provisions in the RegDoc are authorized by law 35 Step 3: The pre-placement and random testing provisions are reasonable 38 C. The pre-placement and random testing provisions of the RegDoc do not infringe

section 7 of the Charter 54 D. The pre-placement and random testing provisions of the RegDoc do not infringe

section 15 of the Charter 59 E. The impugned RegDoc provisions are reasonable under administrative law 65 ( 1) There is a statutory basis for the random testing provisions to be in the RegDoc 67 ( 2) The Commission provided adequate reasons for the RegDoc 70 V. Costs 74 VI. Conclusion 74 JUDGMENT AND REASONS I. Overview [ 1 ] A decade ago, the Canadian Nuclear Safety Commission [CNSC] began a process to implement pre-employment and random alcohol and drug testing for the most sensitive positions in Canada’s nuclear power plants.

The CNSC engaged in various broad-based, public stakeholder consultations to refine the policy over the years. It released a final draft in 2020, requiring Class 1 high-security nuclear sites to implement random and pre-placement drug and alcohol testing for Safety-Critical Workers. [ 2 ] The Applicants – six individuals employed in various Safety-Critical positions at Canada’s Class 1 high security nuclear plants, and their Unions – now bring this Application, a judicial review challenging the CNSC’s pre-placement and random testing provisions of the

policy as being unconstitutional in several facets. [ 3 ] On January 21, 2022, the Applicants obtained an injunction from this Court staying the implementation of the impugned provisions of the policy, pending the final disposition of this Application for Judicial Review (see Power Workers Union v Canada (Attorney General) , 2022 FC 73 [ Power Workers 2022 ]). [ 4 ] For the reasons set out below, this judicial review will be dismissed. II. Background [ 5 ] Parliament established the CNSC through the Nuclear Safety and Control Act , SC 1997, c 9 [ Act ] to regulate the nuclear industry in the public interest. The objects of the CNSC are set out in

section 9 of the Act (relevant sections are reproduced at Annex A to these Reasons). All nuclear facilities in Canada must be licensed by the CNSC [Licensees]. [ 6 ] The CNSC includes (

i) staff working within the regulatory body; and (ii) a quasi-judicial tribunal and court of record [the " “Commission” " ]. The Commission’s functions include rendering decisions to adopt policies on recommendation from staff, including the one challenged in this Application. [ 7 ] The Respondents are comprised of the Attorney General of Canada [AGC] and all the licensed high-security Class 1 nuclear facilities regulated by the CNSC, namely Bruce Power L.P., Ontario Power Generation Inc., Canadian Nuclear Laboratories Ltd., and New Brunswick Power Corporation [together, the " “Employers” " ].

The Employers operate Canada’s 19 nuclear fission technology reactors and provide most of Ontario’s energy, as well as a significant quantity of New Brunswick’s electricity.

They employ the workers impacted by the RegDoc (defined below). [ 8 ] The Applicants comprise unions representing workers at CNSC regulated nuclear facilities, namely the Power Workers’ Union, the Society of United Professionals, the Chalk River Nuclear Safety Officers Association, and the International Brotherhood of Electrical Workers, Local 37, [together, the " “Unions” " ] and six affected workers: Chris Damant, Paul Catahno, Thomas Shields, Matthew Stewart, Scott Lampman and Greg MacLeod.

The Unions represent the workers in Safety-Critical positions [Safety-Critical Workers] affected by the pre-placement and random testing provisions of the policy in question, namely REGDOC-2.2.4, Fitness for Duty, Volume II: Managing Alcohol and Drug Use Version 3 [RegDoc] (reproduced at Annex B to these Reasons). [ 9 ] The definition of Safety-Critical positions has evolved with the development of the RegDoc, and now consists of (

i) workers certified under subsection 9(2) of the Class 1 Nuclear Facilities Regulations , SOR/2000-204 [ Class 1 Regulations ], excluding certified health physicists; and (ii) on-site Nuclear Response Force workers, as defined in the final version of the RegDoc, which is the subject of this Application. Workers certified under the Class 1 Regulations include Authorized Nuclear Officers and Unit Control Room Operators.

In sum, the workers impacted by the RegDoc’s pre-placement and random testing provisions are a subset of highly trained, armed, nuclear security officers, who are responsible for maintaining the security of nuclear facilities. By way of reference to other sensitive positions, the fire brigade and emergency response team members are not considered " “Safety-Critical” " positions, but are rather classified as " “safety-sensitive” " positions. A. The development of the RegDoc [ 10 ] Regulatory documents form a critical component of the CNSC’s licencing and compliance framework.

They typically contain two types of information for Licensees: (

i) requirements; and (ii) guidance. Compliance with the regulatory document requirements is mandatory for Licensees that use nuclear substances, operate nuclear facilities or conduct other types of licensed activities. Regulatory document guidance, on the other hand, supplements the requirements.

Licensees are expected to review and consider a regulatory document’s guidance, and provide an explanation to the CNSC should they choose not to follow it. [ 11 ] In 2012, CNSC staff began public consultation to develop a regulatory document for fitness for duty, which included pre-placement and random drug and alcohol testing. This public consultation resulted in the publication of a discussion paper, including a

summary of comments received from stakeholders on the draft discussion paper (What We Heard Report – DIS-12-03, published in November 2013). In November 2015, the CNSC issued and published a first draft of the RegDoc for another round of consultation from relevant stakeholders. [ 12 ] Many stakeholders, including the Applicants, reiterated objections they had initially raised in response to the draft discussion paper, including their claims of: (

i) the unclear statutory basis for imposing testing; (ii) infringement of sections 8 and 15 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]; and (iii) inconsistencies between the arbitral case law and the proposed testing. [ 13 ] In August 2017, CNSC staff issued a second draft of the RegDoc, restricting the scope of pre-placement and random testing to Safety-Critical Workers.

This version also narrowed the definition of a Safety-Critical Worker (see paragraph 9 of these Reasons), which remains the definition in the final version of the RegDoc. [ 14 ] In terms of the feedback received during the RegDoc’s development, CNSC staff presented to the Commission the second draft of the RegDoc, at a public meeting in August 2017.

The Minutes of that meeting reflect that concerns were raised about the pre-placement and random testing provisions of the RegDoc, and that the Commission directed staff to amend the RegDoc and send it back for re- consideration and approval. [ 15 ] In an October 2017 closed meeting, CNSC staff presented a third draft of the RegDoc to the Commission, with recommended amendments. Upon consideration of the third draft, the Commission approved the current version of the RegDoc for publication and use. [ 16 ] The impugned provisions of the RegDoc are sections 5.1 (pre-placement testing) and 5.5 (random testing).

These provisions require

Licensees to implement pre-placement and random drug and alcohol testing for Safety-Critical Workers. CNSC estimates that out ofapproximately 12,000 workers across nuclear facilities, under 10% are Safety-Critical. [17]

Section 5.1 requires Licensees to conduct pre-placement testing for all successful candidates who apply for a Safety-Criticalposition at a high-security nuclear facility. Pre-placement testing must be implemented for both new and incumbent workers. TheRegDoc indicates that pre-placement testing is not a screening tool and should only be administered once a candidate has met all otherqualifications necessary. [18]

Section 5.5 requires Licensees to have all Safety-Critical Workers submit to random drug and alcohol testing, as distinct fromsection 5.1 pre-placement testing. At least 25% of the Safety-Critical Worker population of all facilities must be tested randomly everyyear. [19] Under

section 6.1 of the RegDoc, Licensees must test for alcohol through the collection of breath samples using approvedinstruments defined at

section 2 of the Approved Breath Analysis Instruments Order, SI/85-201. The testing is to be administered byqualified technicians who are independent from workgroups subject to testing. [20]

Section 6.2 of the RegDoc, indicates that for drug testing, Licensees can choose to implement laboratory urine testing, laboratoryoral fluid testing, or a combination of both. Licensees must retain and utilize the services of an accredited laboratory to analyze andreport the results. For urine testing, the laboratory used must be accredited by the Substance Abuse and Mental Health ServicesAdministration [SAMHSA].

For oral fluid testing, the laboratory used must be accredited by SAMHSA or meet the GeneralRequirements for the Competence of Testing and Calibration Laboratories, ISO/IEC 17025. [21] The RegDoc establishes threshold values, or cut-off levels, for the amount of a substance that must be found in a sample toconstitute a positive test result for both alcohol testing and drug testing. The positive results from laboratory tests are sent to a medicalreview officer who reviews, interprets and verifies the laboratory tests results for each drug class as specified in the RegDoc.

When facedwith a positive test result, the medical review officer must provide the worker an opportunity to explain any alternative reasons for suchresult. The medical review officer will only report verified positive test results to Employers. [22] It should be noted that the pre-placement and random testing provisions of the RegDoc have not yet been implemented. TheRegDoc went into effect on January 21, 2021.

The November 2020 Meeting Minutes of the CNSC reflect that the Licensees would berequired to implement pre-placement testing measures within six months (by July 22, 2021), and random testing measures within twelvemonths (by January 22, 2022).

However, in early 2022, the Applicants successfully brought a motion for an injunction before the Court.Justice Gleeson granted the injunctive relief sought, staying the implementation of sections 5.1 (pre-placement testing) and 5.5 (randomtesting) of the RegDoc until the final disposition of this Application (see: Power Workers 2022 at paras 5-8). [23] As a result, the testing mechanism contemplated under the impugned sections of the RegDoc has yet to be administered.

Courts areencouraged to proceed with caution when considering the constitutionality of a provision or legislative scheme in the absence of a factualmatrix (MacKay v Manitoba, (SCC), [1989] 2 SCR 357 at 366 [MacKay]; Ernst v Alberta Energy Regulator, 2017 SCC1 at para 22 [Ernst]). III. Issues and Standard of Review [24] Before setting out the issues before me, I note that in the Notice of Constitutional Question, the Applicants assert that the pre-placement and random testing provisions of the RegDoc are "“invalid”" under

section 1 of the Charter. In the Notice of Application forJudicial Review, the Applicants seek a declaration that sections 5.1 and 5.5 of the RegDoc are contrary to sections 7, 8, and 15 of theCharter and are of no force and effect. The Notice of Application also seeks an order quashing the CNSC’s decision to adopt theprovisions. [25] Thus, this case is distinct from many of the administrative law cases challenging delegated legislation, in that the Applicants do notchallenge the RegDoc as being ultra vires its enabling statute.

In other words, they do not argue that the RegDoc is invalid because theCNSC exceeded the powers delegated to it by Parliament in the Act. Nor do the Applicants impugn the jurisdiction or vires of the Actwrit large, to argue that the Act is contrary to the division of powers, the Charter, or

section 35 of the Constitution Act. [26] Instead, the Applicants submit that two specific elements of the RegDoc, namely the (

i) pre-placement and (ii) random testingmeasures (sections 5.1 and 5.5), infringe several sections of the Charter. They contend that the CSNC’s decision to adopt these measureswas unreasonable. In other words, they say that while sections 5.1 and 5.5 must be struck, the remainder of the structure of the RegDocmay stand. [27] The Applicants argue that the RegDoc’s two impugned sections should fall for two reasons. First, they contend that its pre-placement and random testing requirements violate sections 7, 8, and 15 of the Charter, and are not justified under

section 1. Second,they posit, in the alternative, that CNSC’s decision to adopt the RegDoc was unreasonable on administrative law grounds. [28] In determining the applicable standard of review in this case, it is important to understand how the issues were framed.

In makingtheir case, the Applicants pivoted between challenging the elements of the RegDoc as if they were seeking to invalidate provisions of astatute, and impugning the CNSC’s decision to adopt a RegDoc that includes pre-placement and random testing requirements. [29] On the one hand, for the purposes of their administrative law arguments, they dress the RegDoc in the garb of an administrativedecision, attacking it for its unreasonableness.

On the other, for the purposes of their constitutional arguments, they impugn it as a formof regulation or legislative measure that prescribes a limit on a Charter right. [30] A similar blending of the classification of the RegDoc was also evident in the Applicants’ written submissions. For instance, atparagraph 42 of their Factum, the Applicants state, "“the RegDoc constitutes a “law” which prescribes a limit on Charter rights […]

Non-statutory binding rules that establish obligations of general rather than specific application, and are sufficiently accessible andprecise, qualify as “law” that prescribe a limit on a Charter right.”" [31] Later, the Applicants also submit that the RegDoc purports to be a regulation and that the Commission improperly adopted itthrough the informal vehicle of a regulatory document, rather than having it go through the more rigorous procedure required byregulatory amendments, as further discussed in

Section B (Step 2) below. [32] However, at the outset of their Factum, at paragraph 1, the Applicants state they oppose the CNSC’s decision to impose theRegDoc’s requirements, and in terms of a remedy, request this Court quash the CNSC’s decision to adopt the pre-placement and randomtesting elements of the RegDoc because those two elements are unconstitutional. [33] In the alternative, the Applicants request that the Court remit the two "“elements”" of the RegDoc back to the CNSC for re-determination.

During the hearing, when asked to delineate what exactly they were claiming violated Charter grounds, Counsel for theApplicants clarified that they were seeking a declaration of invalidity of sections 5.1 and 5.5 and for the Court to strike these impugnedprovisions from the RegDoc. Discussion of the remedy was mentioned at various points of the hearing. One such instance occurred at02:43:00 to 02:45:00 of the audio recording of Day 1.

Again, at no point did the Applicants request that the Court strike out the validityof the entire RegDoc. [34] The Respondents agree with the Applicants that the constitutionality of the testing measures should be reviewed by adjudicatingeach Charter right and applying the framework in R v Oakes, (SCC), 1 SCR 103 [Oakes] under

section 1. The Partiesare also in agreement that the Court ought not to apply the balancing framework for the review of discretionary administrative decisionsset out in Doré v Barreau du Québec, 2012 SCC 12 at paras 37, 39 [Doré] (see also: Loyola High School v Quebec (Attorney General),2015 SCC 12 at paras 39-42 [Loyola]; Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 111 [TrinityWestern]).

The Parties submitted in their written materials – and reiterated at the hearing – that the Court must not use the Charter valuesparadigm in analysing the RegDoc, because the Applicants are not challenging the CSNC’s underlying decision to adopt the entireRegDoc, rather only two sections of it. [35] While the Parties agree on the method for how the Court should approach the Charter questions raised by the Applicants, namelyunder the Oakes approach, they split on the esoteric question of whether correctness, or no standard of review applies.

They agree thatreasonableness applies to the administrative law question of whether the CNSC’s decision to adopt the RegDoc was reasonable. [36] The Applicants rely on Elementary Teachers Federation of Ontario v York Region District School Board, 2022 ONCA 476 at paras36-37 [Elementary Teachers] to argue that the correctness standard applies in their Charter arguments.

In Elementary Teachers, theOntario Court of Appeal held that an arbitrator’s decision was subject to a correctness standard of review on the question of law ofwhether the grievor had a reasonable expectation of privacy in their workplace laptop (Elementary Teachers at para 37 citing to R vShepherd, 2009 SCC 35 at para 20).

Elementary Teachers has since been appealed and is now before the Supreme Court of Canada[SCC] (see: York Region District School Board v Elementary Teachers’ Federation of Ontario, (SCC)). [37] The Respondents, by contrast, contend that no standard of review applies to the issue of whether the testing requirements infringethe Charter, because the Applicants do not seek to review an administrative decision. The Respondents state in their written submissionsthat the application of a correctness standard is "“fundamentally at odds with the Oakes test”".

They argue that the Applicants seek tostrike out provisions of the RegDoc, which in their view, is a policy "“prescribed by law”" that falls within the meaning of

section 1 ofthe Charter.

Relying on Greater Vancouver Transportation Authority v Canadian Federation of Students British Columbia Component,2009 SCC 31 at paragraph 64 [Greater Vancouver Transportation Authority], they say the RegDoc qualifies as a "“law”" because itestablishes a series of obligations that must be adhered to by all Licensees. [38] I am not convinced by this distinction that the correctness standard is fundamentally at odds with the Oakes framework since, asrecently noted by Justice Favel in McCarthy v Whitefish Lake First Nation #128, 2023 FC 220 at paragraph 54 [Whitefish], "“[t]hisdistinction is more academic than practical, as “no standard of review” is the functional equivalent of a “correctness review””".

Putsimply, here the question is whether in its application, the RegDoc breaches the Charter. [39] The Respondents also rely on Reference re Marine Transportation Security Regulations, 2009 FCA 234 [Marine Reference] andCanada (Union of Correctional Officers) v Canada (Attorney General), 2019 FCA 212 [Correctional Officers].

These two Federal Courtof Appeal [FCA] decisions dealt with Charter challenges to the validity of federal regulations. [40] In Marine Reference, the AGC brought a reference to the Court under subsection 18.3(2) of the Federal Courts Act, RSC, 1985, c F-7 to determine their constitutional validity.

As such, there was no administrative decision at play and the Court did not consider whethera standard of review was applicable. [41] Correctional Officers, which was decided in 2019, involved a judicial review application to the Treasury Board’s decision to adopt astandard for financial security screening procedures of correctional officers, and a directive by the Correctional Service of Canadaimplementing it. The applicants in Correctional Officers argued that the enhanced financial screening procedures infringed the

section 8Charter rights of employees at these correctional facilities. [42] The FCA rejected the application judge’s determination that the reasonableness standard applied in Correctional Officers, findinginstead that the correctness standard applied.

The Court went on to explain that Doré was not applicable because the application forjudicial review "“is more akin to a challenge of the constitutionality of a legislative or regulatory provision”" (Correctional Officers atpara 21): [21] […] the appellant is not challenging an individual administrative decision based on a provision of the 2014 Standard orthe Commissioner’s Directive that was interpreted by a decision maker. Instead, the appellant is challenging their adoptionin their entirety.

Thus, the Union is attacking head on the constitutionality of the 2014 Standard and the Commissioner’sDirective themselves. It follows that the analytical framework described in Doré does not apply and that it is thereforeinappropriate to apply the reasonableness standard. The appellant’s application for judicial review is more akin to a

challenge of the constitutionality of a legislative or regulatory provision. Such a challenge is typically subject to the correctness standard of review ( Dunsmuir , at paragraph 58). [Emphasis in Original] [ 43 ] In many respects, Correctional Officers is on point in that the Applicants here are not challenging a decision-maker’s

interpretation of the document in question. In both cases, they challenge the adoption of financial screening and drug testing (respectively) measures on Charter grounds. [ 44 ] A few months after the release of Correctional Officers , the SCC released Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ].

The decision in Correctional Officers , although decided by the FCA just before Vavilov , is still good law, having been cited by Chief Justice Crampton post- Vavilov in Spencer v Canada (Health) , 2021 FC 62 [ Spencer ]. [ 45 ] In Spencer , Chief Justice Crampton dismissed a challenge to the validity of certain federal quarantine measures affecting air travellers. The measures were part of the federal government’s response to the COVID-19 global pandemic and were implemented by way of a series of Orders in Council.

On appeal, the FCA held that the challenge was moot since the orders had been repealed ( Spencer v Canada (Attorney General) , 2023 FCA 8 ). [ 46 ] At paragraph 64 of Spencer , Chief Justice Crampton cites Correctional Officers , among other pre- Vavilov cases to find that " “[t]he standard applicable to the Court’s review of the issues that have been raised with respect to the Charter , the Constitution Act, 1867 and the Canadian Bill of Rights is correctness” " (see also: Taseko Mines Limited v Canada (Environment) , 2017 FC 1100 at paras 49 and 54 , affd 2019 FCA 320 at paras 19 and 22 ). [ 47 ] I will follow this approach, as suggested by the FCA at paragraph 21 of Correctional Officers , and followed by Chief Justice Crampton in Spencer .

I find this approach to be consistent with my reading of Vavilov where the SCC confirmed at paragraphs 55-57, that the standard of correctness continues to be applied in reviewing constitutional matters. [ 48 ] This is also consistent with subsequent binding case law issued by the FCA ( Innovative Medicines Canada v Canada (Attorney General) , 2022 FCA 210 [ Innovative Medicines ] and Portnov v Canada , 2021 FCA 171 [ Portnov ]).

In both decisions, the FCA found that the adoption of delegated legislation should be reviewed against the reasonableness standard unless an exception under Vavilov applies (see Portnov at para 10 and Innovative Medicines at para 27 ). These cases depart from the approach that had been set out in K atz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 [ Katz ] , that the Court must find the regulation is " “irrelevant,” " " “extraneous,” " or " “completely unrelated” " to the statutory purpose of the enabling statute ( Katz at para 28 ). Katz was published several years before Vavilov .

The FCA confirmed that Vavilov is the most appropriate lens to consider the validity of regulations ( Innovative Medicines at para 26 , Portnov at paras 22-28 ). [ 49 ] I note that both Portnov and Innovative Medicines are distinct from this case. They both considered the vires of the regulations in question in light of their enabling statute. In both decisions, the FCA determined that no exceptions to the presumption of reasonableness under the Vavilov framework applied ( Portnov at para 17 ; Innovative Medicines at para 45 ).

Here, on the other hand, the validity of the RegDoc is being challenged on the basis of certain elements violating sections 7 , 8 and 15 of the Charter . [ 50 ] Vavilov established that the standard of reasonableness is generally applicable when reviewing administrative decisions ( Vavilov at paras 16, 23-25 ). However, there are two exceptions to this presumption.

First, if the legislature specifies a standard of review or creates a statutory appeal mechanism that suggests an appellate standard should be used ( Vavilov at paras 17, 33-35 ). [ 51 ] The second exception arises where the rule of law requires the application of the correctness standard for certain categories of legal questions, namely constitutional questions, general questions of law that are significant to the legal system as a whole, and questions concerning the jurisdictional boundaries between two or more administrative bodies ( Vavilov at paras 17, 53 ). [ 52 ] At paragraphs 54-56 of Vavilov , the SCC describes the issues that fall under the constitutional law category as including legal questions on the division of powers between Parliament and the provinces, the relationship between the legislature and other branches of the state, the extent of Aboriginal and treaty rights under

section 35 of the Constitution Act, 1982 ,

interpretations of the administrative decision-maker’s enabling statute, and " “other constitutional matters that require a final and determinate answer from the courts.” " [ 53 ] The exception to the presumption of reasonableness carved out in Vavilov for constitutional questions follows long-standing jurisprudence confirming the certainty and rigour required in the examination of constitutional questions. As held by the FCA in Guérin v Canada (Attorney General) , 2019 FCA 272 at paragraph 23 : Regarding whether the Regulations and Directives violate

section 7 of the Charter , I am of the opinion that the standard of correctness must apply. It is settled law that constitutional questions must be examined rigorously and without deference in the context of judicial review : Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 30 ; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paragraph 58 [Dunsmuir]; Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2019] F.C.J. No. 186 at para. 30 ; Begum v.

Canada (Citizenship and Immigration) , 2018 FCA 181 , [2018] F.C.J. No. 1007, at para. 36 , leave to appeal to the SCC denied, 38439 (April 18, 2019), [2018] S.C.C.A. No. 506 [ Begum ]; Canada (Attorney General) v. Association of Justice Counsel , 2016 FCA 92 , [2016] F.C.J. No. 304, at para. 23 . [Emphasis added] [ 54 ] Similarly, in Air Canada Pilots Association v Air Canada , 2023 FC 138 [ Pilots Association ], this Court recently considered whether a regulatory exemption under two subsections of the Canadian Human Rights Benefit Regulations , SOR/80-68 infringed subsection 15(1) of the Charter .

Justice Furlanetto held at paragraph 20, relying on paragraphs 55-57 of Vavilov : " “The standard of review for the substantive issue is correctness. The compatibility of subsections 3(

b) and 5(

b) of the Regulations with the Charter is a constitutional question that falls within an exception to the presumption of reasonableness.” "

[55] In this case, the Charter challenges advanced by the Applicants are characterized as "“attacking head on the constitutionality”" ofthe RegDoc (see: Correctional Officers at para 21).

In my view, the approach used in Correctional Officers, and recently followed bythis Court in Spencer and Pilots Association, is the more appropriate approach to adjudicate the Charter questions in this case; and I findit to be consistent with Vavilov, falling within the exception to the presumption of reasonableness of "“other constitutional matters thatrequire a final and determinate answer from the courts”" (Vavilov at para 55). IV. Analysis [56] The nuclear industry is unique. All Parties concur that safety is the most important priority, and that public interest in nuclear safetyis high.

A nuclear incident can have devastating and long lasting impacts on the community and the environment. It is within this uniquecontext of the highly regulated nuclear industry that I find the pre-placement and random testing provisions of the RegDoc areconstitutional and do not breach sections 8, 15 or 7 of the Charter, as will be explained next. A. Applicability of the Charter [57] The Charter binds the conduct of state actors and does not limit private or non-governmental activity (RWDSU v Dolphin DeliveryLtd., (SCC), [1986] 2 SCR 573).

For instance, a search or seizure carried out by a private citizen does not trigger

section 8scrutiny unless the private citizen was acting as an agent of the state or was exercising statutory delegation of governmental powers (R vBuhay, 2003 SCC 30 at para 31). [58] Subsection 32(1) of the Charter defines the scope of its application in the following terms: 32

(1) This Charter applies 32

(1) La présente chartes’applique : (

a) to the Parliament andgovernment of Canada in respectof all matters within the authorityof Parliament including all mattersrelating to the Yukon Territory andNorthwest Territories; and

a) au Parlement et augouvernement du Canada, pourtous les domaines relevant duParlement, y compris ceux quiconcernent le territoire du Yukonet les territoires du Nord-Ouest; (

b) to the legislature andgovernment of each province inrespect of all matters within theauthority of the legislature of eachprovince.

b) à la législature et augouvernement de chaque province,pour tous les domaines relevant decette législature. [59] In Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624, Justice La Forest, writing for aunanimous court, summarized the applicable principles for the

interpretation of

section 32: . . . the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself“government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to thealleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it,properly be characterized as “government” within the meaning of s. 32(1).

In such cases, all of the activities of the entitywill be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by anon-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny withrespect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of theentity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one mustscrutinize the quality of the act at issue, rather than the quality of the actor.

If the act is truly “governmental” in nature — forexample, the implementation of a specific statutory scheme or a government program — the entity performing it will besubject to review under the Charter only in respect of that act, and not its other, private activities. [60] In Greater Vancouver Transportation Authority, Justice Deschamps reiterated that the Charter applies not only to Parliament, thelegislatures, and government, but also to "“all matters within the authority of those entities”" (para 14). [61] The Parties did not cite any decisions explicitly stating that the Charter applies to nuclear power workplaces, nor am I aware of anysuch jurisprudence.

However, I note that in one somewhat analogous context in the early days of the Charter, the Ontario LabourRelations Board found at para 35 of Electrical Power Systems Construction Council of Ontario v Ontario Hydro, (ONLRB): "“[t]here appears to be little doubt that the Charter would apply to actions of government officials in issuing regulations andgranting or denying licences or benefits authorized under statutes.”" [62] I further note that the SCC has held that bodies created by statute (like municipalities and school boards) are government entitieswith legislative powers and the Charter applies (Godbout v Longueuil (City), (SCC), [1997] 3 SCR 844 at paras 50, 51118 [Godbout] and Chamberlain v Surrey School District No. 36, 2002 SCC 86).

Likewise, the CNSC is an entity that was created byParliament, is thus a "“government entity”", and accordingly, the Charter applies. [63] More specifically, the CNSC is a federal regulator, mandated to oversee the production and use of nuclear power in Canada,operating in the public interest. It was established as an agent of the Crown pursuant to subsection 8(2) of the Act. The CNSC membersand president are appointed by the Governor in Council (subsections 10(1) and (3) of the Act). Pursuant to

section 19, the Governor in

Council may issue "“directives”" to the Commission that are legally binding. Moreover, sections 12 and 72 of the Act define the role ofthe CNSC’s President as being its chief executive reporting to the Minister of National Resources. [64] In short, as the CNSC is governmental in nature, it is subject to Charter review. B. The pre-placement and random testing provisions of the RegDoc do not infringesection 8 of the Charter [65]

Section 8 of the Charter confers the right "“to be secure against unreasonable search or seizure.”" At its core, the purpose of section8 is to shield against unjustified state intrusions on personal privacy (R v Kang-Brown, 2008 SCC 18 at para 8; Hunter et al v SouthamInc., (SCC), [1984] 2 SCR 145, at p 160 [Hunter v Southam]). Broadly speaking,

section 8 protects a claimant’sreasonable expectation of privacy against unreasonable state intrusion (R v Tessling, 2004 SCC 67 at paras 18-16 [Tessling]). [66] I begin my analysis with a brief discussion of the applicability of the

section 8 case law to the unique nature of the case at bar. In thecontext of criminal law, the contemplation of unreasonable search or seizure protection calls for a highly fact-specific analysis intowhether an accused’s personal right to privacy was infringed by the state. As a matter of standing under

section 8, an accused may onlyinvoke his or her own personal privacy rights and not those of a third party (see for instance: R v Edwards, (SCC),[1996] 1 SCR 128 at paras 43, 45-47 [Edwards]; R v Marakah, 2017 SCC 59 at para 12). [67]

Section 8 has certainly been found to extend beyond the protection against unreasonable search and seizure in a criminal law context(see: R v McKinlay Transport Ltd., (SCC), [1990] 1 SCR 627 at 640-641 [McKinlay Transport]; Comité paritaire del’industrie de la chemise v Potash, (SCC), [1994] 2 SCR 406 at 408 [Comité paritaire]; Thomson Newspapers Ltd. vCanada (Director of Investigation and Research, Restrictive Trade Practices Commission) (1990), (SCC), 54 CCC (3d)417 at 495-496 [Thomson Newspapers]). [68] However, in each of these non-criminal law decisions, the SCC contemplated the particulars of a search or seizure event that hadalready transpired.

In McKinlay Transport, the Court considered the constitutionality of provisions of the Income Tax Act, RSC 1985, c1, after these provisions had been applied to two corporate taxpayers. [69] The Court in Comité paritaire, similarly considered the inspection powers of an agency in a regulated industrial sector (textilemanufacturing), after the inspectors had attempted to investigate the premises in question in accordance with their powers under theimpugned legislation. In Thomson Newspapers, the Court considered whether

section 17 of the Combines Investigation Act violatedsections 7 and 8 of the Charter after it was used to serve the corporate appellant and several of its officers with orders to appear beforethe Restrictive Trade Practices Commission, to be examined under oath and to produce documents. [70] Although non-criminal, McKinlay Transport, Comité paritaire and Thomson Newspapers each involved a "“factual foundation”" toconsider the constitutionality of the search or seizure incident at issue (see also MacKay at page 361). [71] Evidently, in this case, the implementation of the impugned provisions is stayed pending the final determination of this Applicationfor Judicial Review (Power Workers 2022 at para 6).

I am thus being asked to adjudicate the constitutionality of a seizure to beauthorized by the RegDoc, but which has not taken place for any particular worker, given the injunction issued in Power Workers 2022. [72] The FCA decisions Correctional Officers and Marine Reference (above) are instructive on how to consider an inchoate search orseizure – namely one that is authorized by a particular statutory or regulatory regime, but which has not yet taken place.

CorrectionalOfficers, decided after Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 [Goodwin], considered theconstitutionality of a prospective search in a regulatory context. [73] In Marine Reference, the Court considered a regulatory scheme that would apply to screen workers employed in security-sensitivepositions in Canadian ports. The regulations at issue required workers to provide biographical information about themselves and theirspouses to the Minister of Transport to determine whether the workers represented a security threat to Canada’s operations.

At paragraph28 of Marine Reference, Justice Evans, writing for the Court, emphasized three relevant considerations to frame the Charter challengesbrought in a particular regulatory context: [28] First, as the party alleging Charter violations, ILWU [the Applicant] has the burden of proving a prima facie breach,even when the

section of the Charter in question requires a contextual balancing of the right against competing interests,such as sections 7 (principles of fundamental justice) and 8 (unreasonable search). Second, when the issue is whetherimpugned state action has the effect of infringing a Charter right, ILWU, as the party alleging that it does, must adduceevidence to prove it, unless it is obvious. Third, it is important to distinguish an attack on the validity of the Regulations,such as that by ILWU, from an attack on an individual decision made under them. Regulations are not invalidated merelybecause they may be applied in an unconstitutional manner in individual cases. [74] In the Court’s

section 8 Charter analysis, Justice Evans first assumed for the purposes of the reference, that the regulations wouldconstitute a search (para 48). He went on to consider the second step for the

section 8 analysis, that is, whether the search as authorizedby the regulations was unreasonable. The Court balanced employees’ interest in their personal privacy against the public interests servedby the statutory scheme (Marine Reference at para 49). This balancing exercise compelled the court to take into account the followingconsiderations: (i)contextual factors; which take into account (ii)prior authorization and post-decision review (ie. checks and balances to prevent abuses of power); and (iii)degree of intrusion into privacy and pressing nature of the public interest (ie. fingerprints or photographs being less intrusive).

[75] In the more recent decision of Correctional Officers, the FCA ruled that a directive mandating correctional officers with specificsecurity clearance levels to submit credit reports, did not infringe

section 8 of the Charter. Since it was not disputed that the credit checkwas a search within the meaning of

section 8, the Court’s analysis was focused on whether the directive at issue would result in anunreasonable search of the applicants. Justice Boivin, writing for the Court in Correctional Officers, outlined the steps of the

section 8analysis, after having considered both the approaches taken in Marine Reference and in Goodwin: [24] Since the respondent did not dispute at trial that the credit check was a search within the meaning of

section 8 of theCharter, the Federal Court limited its analysis to the issue of whether that search was abusive (Federal Court decision atparagraphs 95–98; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145). [25] For that purpose, the Federal Court methodically applied the criteria set out by the Supreme Court of Canada in and thecriteria described by our Court in the Marine Reference. In the present case, the criteria in question can be described asfollows: (

i) the objective of the 2014 Standard and the Commissioner’s Directive; (ii) the nature of those schemes; (iii) themechanism for conducting the search, including the degree of intrusiveness; and (iv) the subsequent review and possibleredress for overseeing the search. [Full citations omitted; emphasis added] [76] In both Marine Reference and Correctional Officers, the FCA considered whether the regulations were authorized by law andwhether the law itself was reasonable.

However, neither address whether the manner in which the search was carried out was reasonable,for the obvious reason that no search had yet been carried out. [77] As a similar situation is also present here, given that the scheme exists but has not yet been exercised against any Safety-CriticalWorkers in light of this Court’s injunction, I will apply the FCA’s approach as guided by the SCC in Goodwin, since the Court has beenasked to strike regulatory provisions that empower Licensees to authorize a seizure. Step 1: The pre-placement and random testing provisions engage

section 8 [78] The first step requires the claimant to show that state conduct amounts to a search or seizure within the construct of

section 8 (R vJones, 2017 SCC 60 at para 13 [Jones]), and determine whether

section 8 is engaged, based on the claimant’s reasonable expectation ofprivacy (Goodwin at paras 49-51). [79] The word ‘search’ has been described as "“an examination, by the agents of the state, of a person’s person or property”": Hogg,Constitutional Law of Canada, vol. 2 (Toronto: Carswell, 2021) at 48:4. [80] The term ‘seizure’ was defined by Justice La Forest in Thomson Newspapers as "“the taking of a thing from a person by a publicauthority without that person’s consent.”" This definition was recently applied by the FCA in Rémillard c Canada (Revenu national),2022 CAF 63 at para 71. [81] I reiterate that not every "“examination”" conducted by a state actor, nor every "“taking”" by the government, engages the

section 8protection (Tessling at para 18; Goodwin at para 51).

Rather, a search or seizure only occurs when the state has interfered with a citizen’sreasonably held expectation of privacy, taking into account the "“totality of the circumstances of a particular ""case”" (Jones at para 13citing Edwards at para 31; R v Wong, (SCC), [1990] 3 SCR 36, at 62). [82] In this case, the Respondents concede that requiring Licensees to collect bodily samples – whether breath, urine or saliva –necessarily involves taking personal and informational data amounting to a "“seizure.”" That point conceded, their position is that underthe RegDoc, the state interferes in a limited manner.

Based on the totality of the circumstances, the Respondents argue that Safety-Critical Workers employed at a nuclear power plant have a significantly reduced expectation of privacy. [83] The Applicants argue that Safety-Critical Workers do not have a diminished expectation of privacy, but on the contrary, have aheightened expectation of privacy based on (

a) the subject matter of the search (

b) their interest in the subject matter (

c) their subjectiveexpectation of privacy in the subject matter and (

d) whether this subjective expectation of privacy was objectively reasonable, havingregard to the totality of the circumstances. In support of their argument that they deserve a heightened expectation of privacy, theApplicants primarily rely on the SCC decisions in Tessling at paragraph 32, and R v Spencer, 2014 SCC 43 at paragraph 18 [R vSpencer] and the lower court decision in Gillies (Litigation Guardian of) v Toronto District School Board, 2015 ONSC 1038 (Sup.

Ct.)at paragraphs 79-80 [Gillies]. [84] In particular, the Applicants note that the urine and/or oral fluids collected in the pre-placement and random process testing arebodily samples over which the Safety-Critical Workers have both a high interest and a subjective expectation of privacy.

The Applicantsargue that bodily samples and what they reveal about a person’s lifestyle constitute an individual’s "“biographical core”," and there canbe no doubt that an individual has a significant interest in that information both on a subjective and objective basis (R v Plant, (SCC), [1993] 3 SCR 281 at para 20). [85] The Applicants highlight the comments of Justice Himel, at paragraph 96 of Gillies: [96] I do not accept the respondents’ submission that, in light of the Supreme Court decision in Jarvis, the seizure of thestudents’ breath sample would not attract the full panoply of Charter rights.

First, the principal deposed in his affidavit thatalthough the breathalyzer is not intended to be a precursor to student discipline, he noted the potential for discipline forstudent alcohol consumption. Second, the seizure of a bodily sample interferes with a person’s bodily integrity regardless ofthe context in which it is taken. I am not persuaded that the Supreme Court intended to diminish the Charter scrutiny to beapplied to the seizure of a bodily sample.

In Jarvis, the impugned search at issue was at a person’s residence and of aperson’s personal documents; the subject matter of the search in the present case interferes with a person’s bodily integrity.That difference is paramount.

[Emphasis added] They contend that the Superior Court’s decision in Gillies rejects the Respondents’ position that a workplace attracts a diminishedexpectation of privacy for workers when the object of the seizure is bodily samples. There, Justice Himel found that the practice ofmandatory, blanket breathalyzer testing of students at their school prom infringed their rights under

section 8. [86] The Applicants also argue that their situation is analogous to that of the teachers in the recent Ontario Court of Appeal decision inElementary Teachers at para 56. In that case, the Court of Appeal held that two teachers’

section 8 rights were breached when theschool’s principal read and documented the teachers’ personal logs of concerns about the school, which were left open on a schoollaptop. The Applicants rely on that case to argue that employees have a right to keep information about their personal choices privatefrom their employer, as well as to expect that information to remain private in the workplace. [87] The Applicants further contend that Safety-Critical Workers have a heightened expectation of privacy because they do not consentto the pre-placement and random testing.

It is compulsory and could result in significant consequences for these impacted employees,including removal from their work duties and referral to a mandatory substance abuse evaluation. The Applicants argue that Safety-Critical Workers did not – and cannot – waive their reasonable expectation of privacy or their Charter-protected right againstunreasonable searches by choosing to work at nuclear facilities.

They assert that under the RegDoc, there is no true right of refusal, butrather only a spectrum of negative employment and reputational consequences. [88] Finally, the Applicants reject the notion that a flexible approach must be adopted in the

section 8 analysis for regulatory contextsbecause this approach would result in a more lenient standard in assessing reasonableness of the search, and effectively diminish rightsunder the Charter.

The Applicants argue (relying on Gillies at para 94) that even in regulatory contexts, the "“full panoply”" of Charterrights apply. [89] The Respondents, on the other hand, primarily rely on Goodwin at paragraph 51 to argue that the SCC has made clear thatindividuals who participate in highly regulated activities have a diminished expectation of privacy, even in relation to the seizure ofbodily samples to determine a measure of alcohol and drug use. In that case, Mr. Goodwin was driving on a public highway and wasasked to give a breath sample to determine whether he was driving while impaired.

The Respondents emphasize that the SCC considereddriving on a public highway to be a "“highly regulated context,”" resulting in a diminished expectation of privacy (Goodwin at para 51).They argue that the same standard should necessarily apply to the handling of safety-critical tasks in a nuclear facility, such that theimpacted positions attract a diminished expectation of privacy. [90] The Respondents highlight that context is important in establishing the reasonable expectation of privacy because a search andseizure arising from a regulatory context cannot be reviewed under the same standard as one arising from a criminal context.

TheRespondents urge this Court to apply, as McKinlay Transport requires, a "“flexible and purposive approach to s. 8 of the Charter”" and"“draw a distinction between seizures in the criminal or quasi-criminal context to which the full rigours of the ""Hunter v Southam""criteria will apply, and seizures in the administrative or regulatory context to which a lesser standard may apply depending upon thelegislative scheme under review”" (at page 647). [91] In my view, a flexible approach, which takes its colour from context, does not diminish Charter rights for individuals.

As JusticeWilson wrote on behalf of the McKinlay Transport majority at pp 644-645: In my opinion, flexibility is key to interpreting any constitutional document including the Charter. It would be wrong, Ithink for the courts to apply a rigid approach to a particular

section of the Charter since that provision must be capable ofapplication in a vast variety of legislative schemes. […] Since individuals have different expectations of privacy in different kinds contexts and with regard to different kinds ofinformation and documents, it follows that the standard of review of what is “reasonable” in a given context must be flexibleif it is to be realistic and meaningful. [92] McKinlay Transport thus established that a flexible approach is not a mechanism to be used by the courts to limit Charter rights.Rather, it allows the courts to interpret Charter rights in a wide variety of contexts in a "“realistic and meaningful”" way.

A flexibleapproach reflects differing expectations of privacy for different contexts. [93] In this case, I agree with the Respondents that the Court should use a flexible approach to the

section 8 analysis due to the highlyregulated nature of the nuclear power workplace. As noted above, it is undisputed that obtaining bodily samples in the workplaceconstitutes a seizure within the meaning of

section 8. [94] With respect to the reasonable expectation of privacy, I disagree with the Applicants that the balance of contextual factors points to aheightened expectation of privacy for Safety-Critical Workers at nuclear facilities. In particular, the Applicants argued that thecompulsory nature of the pre-placement and random testing provisions and lack of consent would result in a heightened expectation ofprivacy. However, if Safety-Critical Workers had a right of refusal or consented to the requirement, their

section 8 rights would not beengaged at all because there would be no search or seizure in the first place. As held by the Ontario Court of Appeal in R v Wills, (ON CA), 7 OR (3d) 337 at paragraph 86: "“[a] valid consent is a waiver of one’s s. 8 rights. A ‘consent search or seizure’is, in fact, no search or seizure at all for the purposes of s. 8.”" [95] I also take issue with the Applicants’ reliance on the Gillies decision. It is distinguishable from the case at bar. First, the SuperiorCourt in Gillies applies a very specific test for

section 8 that was established by the SCC to determine whether searches conducted byteachers or a principal in the school environment is reasonable (Gillies at para 129). As discussed above, the framework of analysis inGoodwin, Marine Reference, and Correctional Officers is more appropriate for the present case, given the regulatory framework withinwhich those three cases arise.

[96] Second, I am not convinced by the Applicants’ attempt to draw a parallel between the negative employment and reputationalconsequences that could befall a Safety-Critical Worker subject to a pre-placement or random test, and the "“disruptive, invasive andhumiliating”" experience of a student subject to a breathalyzer test at their high school prom (Gillies at para 132). [97] When balancing the contextual factors to determine the strength of the privacy interests at stake, I find that the

section 8 rights ofSafety-Critical Workers are engaged. Although these workers have a diminished expectation of privacy when working at nuclearfacilities, their residual privacy interest in the collection of their bodily samples is by no means eliminated. [98] While the seizure of bodily samples does not automatically attract a high expectation of privacy, particularly for "“relatively non-intrusive samples,”" such as breath (R v Grant, 2009 SCC 32 at para 111; Goodwin at paras 51 and 65), and buccal – or mouth – swabs(R v SAB, 2003 SCC 60 at para 44 [R v SAB]), the taking of one’s biographical information without their consent falls squarely withinthe purview of

section 8. This determination is supported by the SCC’s remarks in Goodwin: [50] It is undisputed before this Court that the roadside breath demand constitutes a seizure within the meaning of s. 8 of theCharter. [51] It is also undisputed before this Court that drivers of vehicles have some expectation of privacy in their breath, even if adiminished one. The factors identified by this Court as “helpful markers” in Tessling, at paras. 43-62, support thisconclusion. The seizure occurs in a vehicle (R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 111 and 113); in thehighly regulated context of driving on a public highway (R. v. McKinlay Transport Ltd., (SCC), [1990] 1S.C.R. 627, at pp. 647-48); and is relatively non-intrusive (Grant, at para. 111). While these factors support a diminishedexpectation of privacy, they do not eliminate any residual privacy interest in one’s breath. Thus the demand to breathe into aroadside screening device constitutes a seizure that infringes on an individual’s reasonable expectation of privacy.

Theprotection of s. 8 is engaged. [Emphasis added] Step 2: The pre-placement and random testing provisions in the RegDoc are authorized by law [99] The Applicants argue that the pre-placement and random testing provisions are not authorized by law, because there is nothingspecifically in the Act, nor a common law rule, that authorizes the search (R v Caslake, (SCC), [1998] 1 SCR 51 at para12 [Caslake]).

The Applicants rely on R v Shoker, 2006 SCC 44 at para 22 [Shoker] to argue that searches must be authorized by lawthrough specific statutory language and not general grants of regulatory power as was used by the CNSC in passing the RegDoc, becausewhere Parliament has chosen to authorize the collection of bodily samples, it has used both clear authorizing language, and standardsafeguards surrounding the collection of bodily samples. [100] The Applicants also rely on expressio unius est exclusio alterius, a maxim meaning the express mention of an item excludes others.They submit as the basis of the expressio unius principle that paragraph 44(1)(

h) of the Act specifically mentions the Commission’spower to make regulations prescribing medical examinations or tests to nuclear energy workers to ensure their protection, but does notcontain authorizing language with respect to pre-placement or random testing, or any standards and safeguards for such methods oftesting. [101] The Applicants further argue that the Act does not contain any provision, other than paragraph 44(1)(h), which mentions medicalexaminations or tests that would include pre-placement and random testing.

The Applicants contend that this absence of a specific grantof authority in the Act demonstrates Parliament’s intent to deny the CNSC the power to impose pre-placement and random testingprovisions on nuclear workers. [102] The Respondents counter that the pre-placement and random testing provisions of the RegDoc are authorized by law, because theRegDoc is a law.

As noted above, they rely on Greater Vancouver Transportation Authority to submit that a RegDoc can constitute a"“law”" where it establishes a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority that is sufficiently precise and accessible. The Respondents contend that the RegDoc is an instrument enacted byCanada’s nuclear regulator under a broad statutory grant or power, and thus satisfies the "“authorized by law”" requirement for

section 8of the Charter. [103] The Respondents further submit that jurisprudence emanating from a regulatory context is more applicable and persuasive thanthat arising from the criminal context.

For example, they argue that the decisions in Caslake and Shoker, which authorize the collectionof bodily samples within a law enforcement regime, are not applicable in the current case because the RegDoc is not punitive in nature.Instead, the Respondents invite the Court to follow the flexible approach required in a regulatory context, as described by the SCC inGoodwin at para 53: The analysis of a search or seizure under s. 8 is a contextual inquiry: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, atpara. 26.

It requires regard to the purpose for which the seizure occurs, and to the statutory provisions that set out thegrounds, means and consequences of the seizure. A search or seizure can be valid for one purpose and not for another. [104] I am not persuaded by the Applicants’ position because it fails to consider the regulatory context in which the seizure is authorized.It is true that neither the Act nor its associated Regulations stipulate the collection of bodily samples for drug and alcohol testing, as docertain provisions of the Criminal Code, RSC 1985, c C-46.

However, we must adopt a more flexible approach to the "“authorized bylaw”" requirement, as suggested by the SCC, when in a regulatory and not in a criminal, context. That encapsulates the presentcircumstances. [105] Indeed, here the associated Regulations, the General Nuclear Safety and Control Regulations, SOR/2000-202, and the Class 1Regulations [collectively the Regulations], require Licensees to maintain human performance programs that include ongoing attention toreducing the likelihood of human performance-caused safety events. These regulatory provisions and CNSC’s broad powers to impose

licensing requirements under subsection 24(2) of the Act constitute a sufficient statutory basis for this Court to find that the pre-placement and random testing provisions of the RegDoc are authorized by law. These statutory provisions also reflect Parliament’s intentto empower the CNSC to regulate and set standards in the nuclear industry as it sees fit. [106] I find the Applicants’ expressio unius argument to be unconvincing.

In particular, I do not find compelling the suggestion that thisCourt should look to what has been excluded from the Act and its associated Regulations to understand Parliament’s intent concerningdrug and alcohol testing at nuclear facilities. Indeed by reviewing subsection 24(2) and paragraph 44(1)(

h) of the Act (see Annex A tothese Reasons for both provisions), there is nothing that indicates that Parliament intended to exclude the CNSC’s broad regulatorypowers from applying to medical examinations and testing of workers. [107] I note that in the context in which this judicial review application arises, Parliament has given the CNSC a wide latitude to regulateCanada’s nuclear industry in the public interest. To achieve this regulatory purpose, Parliament delegates a variety of tools to the CNSCto tailor specifications and requirements to Licencees governed by the Act and its Regulations.

The CNSC acted pursuant to its broadpowers when it decided to implement pre-placement and random testing to bolster the fitness for duty programs and ameliorate the safetyconditions in these nuclear facilities. These powers are authorized by law under subsection 24(2) of the Act.

Step 3: The pre-placement and random testing provisions are reasonable [108] Before I begin my analysis of the reasonableness of the pre-placement and random testing provisions using the framework set outin Goodwin and applied in Correctional Officers, I will briefly discuss the Applicants’ reliance on arbitral jurisprudence. [109] The Applicants rely on arbitral jurisprudence, in particular Communications, Energy and Paperworkers Union of Canada, Local 30v Irving Pulp & Paper Ltd, 2013 SCC 34 [Irving] to argue that pre-placement and random testing is unreasonable.

The Applicants submitthat the well-established arbitral jurisprudence about pre-placement and random testing ought to weigh heavily on the

section 8 analysisbecause that case considered the same balancing between individual privacy rights and employer interests as does

section 8.

TheApplicants rely on the SCC’s comments in Irving at paras 30-31 to argue that an employer’s interest in safety will not justify breachingan employee’s privacy rights without reasonable cause, even in an inherently dangerous workplace: [30] In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safetysensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” tobelieve that the employee is impaired while on duty, where the employee has been directly involved in a workplace accidentor significant incident, or where the employee is returning to work after treatment for substance abuse […] [31] But the dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safetysensitive — is, while clearly and highly relevant, only the beginning of the inquiry.

It has never been found to be anautomatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What hasbeen additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abusein the workplace. [110] While the SCC’s analysis of the balancing of interests between the employer and employees in Irving, along with the other arbitraljurisprudence, is helpful, I do not feel it is authoritative for the

section 8 analysis in this case. Indeed, one must consider how JusticeAbella approached Irving, writing at paragraph 3 of that decision: The legal issue at the heart of this case is the

interpretation of the management rights clause of a collective agreement. Thisis a labour law issue with clear precedents and a history of respectful recognition of the ability of collective bargaining toresponsibly address the safety concerns of the workplace – and the public. [Emphasis added] [111] The reality is that Irving and the arbitral jurisprudence focuses on the exercise of management rights and the application of the"“KVP test,”" a test which was contained in the labour law decision Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co.(1965), (ON LA), 16 LAC 73.

The KVP test ensures "“that any rule or policy unilaterally imposed by an employerand not subsequently agreed to by the union, must be consistent with the collective agreement and be reasonable”" (Irving at para 24).While the KVP test focuses on the relationship between the employer and the employees, and the terms of the collective agreementbetween them, a

section 8 analysis is more contextual and requires the examination of the totality of circumstances. [112] In any event, the circumstances in the present case are distinguishable from those in Irving in two significant ways. First, thesubject matter under review is a measure enacted by a federal regulator, and not workplace requirements introduced by an employer.Second, the RegDoc does not mention disciplinary consequences, whereas the employer policy in Irving did.

Also notable is the fact thatIrving does not preclude the implementation of pre-placement and random testing in workplaces (Irving at para 52): [52] This is not to say that an employer can never impose random testing in a dangerous workplace. If it represents aproportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified. [113] In keeping with the analysis set out by Goodwin as applied in Correctional Officers, my assessment of whether the seizureauthorized by sections 5.1 and 5.5 of the RegDoc is reasonable, will be subject to the following criteria: (

a) the purpose of the RegDocand the provisions at issue; (

b) the nature of the regulatory scheme; (

c) the mechanism for obtaining the bodily samples, including thedegree of intrusiveness; and (

d) the subsequent review and possible redress for seizure, i.e. the availability of judicial oversight (seeCorrectional Officers at para 25). Each of these four criteria is discussed next. (

a) The purpose of the RegDoc and the provisions at issue [114] I am satisfied that the purpose of the RegDoc and of its pre-placement and testing provisions, is to standardize and improve

Licensees’ fitness for duty programs relating to drug and alcohol testing. [115] The Respondents submit that the pre-placement and random testing provisions of the RegDoc arose from a need for better fitnessfor duty provisions in light of lessons from nuclear disasters such as the one in Fukushima, Japan in 2011.

This required looking abroadto align with international standards, including the recommendations and expectations of the International Atomic Energy Agency[IAEA], as well as addressing domestic developments such as measures needed to respond to the introduction of the Cannabis Act, SC2018, c 16. [116] As mentioned by the 2021 Arbitral Decision in this matter, "“[t]he RegDoc is the product of almost 10 years of study andconsultation by the CNSC, in which the parties to this litigation have participated, and over the course of which this litigation has beenanticipated”:" Ontario Power Generation, Bruce Power, Power Workers’ Union, Society of United Professionals, The Chalk RiverNuclear Safety Officers Association and International Brotherhood of Electrical Workers, Local 37 v Canadian Nuclear Laboratoriesand New Brunswick Power, (ON LA) at para 2 [Arbitral Decision]. [117] In the course of its research, the CNSC commissioned a number of key reports, which it relied on when developing the RegDoc.These reports include: (i) "“Review, Analysis and Synthesis of CNSC’s Licensees’ Fitness for Duty Programs”" by AIM Health Group in2011 [AIM Report]; (ii) "“The Forensic Toxicology of Alcohol and Best Practices for Alcohol Testing in the Workplace”" by JamesWigmore in 2014 [Wigmore Report]; (iii) "“State of Policies and Practices on Substance Use in Safety-sensitive Industries in Canada”"by the Canadian Centre on Substance Use and Addiction in 2017 [CC Report]; (iv) "“Urine Drug Testing Practices”" by Dr.

AlbertFraser in 2014 [Fraser Report]; and (v) "“Recent Alcohol and Drug Workplace Policies in Canada: Considerations for the NuclearIndustry”" by Barbara Butler and Associates Inc. in 2012 [Butler Report]. [118] The findings in these five reports [Reports] point to an identified need for better methods of detection of drug and alcoholimpairment at nuclear facilities, as well as to the efficacy of the testing methods proposed by the RegDoc. [119] In particular, the AIM Report looked into deficiencies in the CNSC’s existing fitness for duty programs and compared them withstandards from the IAEA, the world’s central intergovernmental forum for scientific and technical co-operation in the peaceful use ofnuclear energy.

Canada is a member of the IAEA, as one of its 175 member states. While the AIM Report found that CNSC’s existingfitness for duty programs were compliant with IAEA standards, it also found the programs across the different nuclear facilities inCanada were inconsistent with each other.

Page 24 of the AIM Report recommended the following specific areas of improvement withinthe domain of "“substance use and abuse”": Improve the policy of Licensees to include clear expectations on the number of hours of alcohol abstinence necessary prior toreporting to work or on-call; Define additional policy statements for off-duty expectations regarding use, possession or distribution of illegal substances; Drug and/or alcohol testing protocols need to be defined. [120] The Wigmore Report noted that there were concerns with supervisory awareness programs for detecting impairment in theworkplace, including a lack of scientific evidence to show that supervisors were able to detect impairment since some workers may notshow outward signs of impairment but still exhibit symptoms of functional impairment. [121] For its part, the CC Report indicated that the impact of legalization and regulation of cannabis in Canada could result in increaseduse in populations that typically did not use cannabis, particularly adults in the workforce. [122] The Fraser Report discussed the efficacy of urine drug testing practices and how it could be used to detect impairment. [123] The Butler Report addressed the deterring effects of random testing and recommended it as a more objective method of testingthan reasonable cause testing (testing after referral based on judgment calls made by supervisors). [124] According to the Respondents, these five Reports informed the development of the RegDoc to improve methods of detection ofdrug and alcohol impairment at nuclear facilities. [125] The record, including the Reports, produced over the course of the decade leading up to the planned 2021 implementation of theRegDoc, shows that the pre-placement and random testing provisions were reasonably included in the RegDoc after years of researchidentified specific gaps in the existing fitness for duty programs, particularly with respect to reliable, consistent, and accurate methods todetect drug and/or alcohol impairment among workers at nuclear facilities.

CNSC staff testified that the Commission had, as early as2007, identified gaps and inconsistencies in the existing fitness for duty programs, particularly for drug use. As a result, CNSC staffresearched drug and alcohol use, the risks posed to the nuclear industry, and what steps would reduce those risks. [126] The bolstering of Licensees’ fitness for duty programs relating to drug and alcohol testing is a compelling purpose in light of thosegaps in protecting against the identified risks.

This compelling purpose weighs in favour of the reasonableness of the seizure required bythe pre-placement and random testing measures. [127] I note that the purpose of the pre-placement and random testing provisions is also aligned with the defence-in-depth principle. Asunderscored by the Respondents, in the nuclear industry, one cannot "“wait and see”" given the severe consequences that often resultfrom nuclear incidents. Thus fitness for duty programs must be built on a foundation that layers various measures to minimize risk andimplement best practices to both prevent failure, and ensure safety.

Contrary to the Applicants’ submissions, pre-placement and randomtesting procedures neither undermine nor diminishes that principle. Rather, they represent additional measures to the other uncontestedmethods of detecting drug and alcohol impairment in the RegDoc. The additional measures contribute to the purpose of the scheme,namely to improve the fitness for duty programs relating to drug and alcohol testing. [128] Under the defence-in-depth principle, the existence of multiple methods and layers of detection of drug and alcohol impairment is

not a redundancy, but rather an intended outcome. In this unique case, the defence-in-depth principle helps to justify multiple methods of detection by pre-placement and random testing under the regime of the RegDoc; it does not controvert that principle or undermine the purpose of the scheme. (

b) The nature of the regulatory scheme [ 129 ] In the context of a regulatory scheme, the SCC departed from the rigid framework of analysis in Hunter v Southam to assess the reasonableness of a search and/or seizure. As Justice La Forest held for the Court in Comité paritaire , " “[i]n a context in which their occupations are extensively regulated by the state, the reasonable expectations of privacy employers may have…are considerably lower” " (at page 420) . He added at page 421: It is thus impossible, without further qualification, to apply the strict guarantees set out in Hunter v.

Southam Inc. , supra , which were developed in a very different context. The underlying purpose of inspection is to ensure that a regulatory statute is being complied with. It is often accompanied by an information aspect designed to promote the interests of those on whose behalf the statute was enacted. The exercise of powers of inspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance.

It may be that in the course of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does not alter the underlying purpose behind the exercise of the powers of inspection. [ 130 ] Furthermore, as held by Justice Karakatsanis writing for the majority at paragraph 60 of Goodwin , " “[the SCC] has recognized in its s. 8 jurisprudence that the characterization of a search or seizure as either criminal or regulatory is relevant in assessing its reasonableness.

Where an impugned law’s purpose is regulatory and not criminal, it may be subject to less stringent standards.” " Likewise, in this case, the highly regulated nature of nuclear facilities is relevant for assessing the reasonableness of the seizure (see also Comité paritaire at page 418 and Marine Reference at para 50 ). [ 131 ] The RegDoc’s administrative law context differs from the criminal domain ( McKinlay Transport at para 647 ; Thomson Newspapers at paras 495-496 ). The focus here is rather the broad public interest served by the RegDoc, namely nuclear safety (see Marine Reference at para 53 ).

As the FCA held in Correctional Officers at para 29 , where the impugned directive was administrative and not criminal in nature: " “[t]he case law is uniformly clear: the resulting searches are thus considered less intrusive than those performed in a criminal investigation.” " [ 132 ] In sum, considering the nature of this regulatory scheme, I find that the RegDoc’s context supports the reasonableness of the searches under its pre-placement and random testing provisions. (

c) The mechanism for obtaining the bodily samples, including the degree of intrusiveness [ 133 ] The SCC held in Goodwin at paras 64-67 that the two relevant factors to assess the reasonableness of the manner of a search are (

i) the degree of intrusiveness on an individual’s bodily integrity, and (ii) the reliability of the results. The Applicants argue that the manner in which the testing is carried out as proposed in the RegDoc is unreasonable, because the collection of bodily samples is highly intrusive, and the RegDoc’s testing methodology is unreliable because it may show only past drug use rather than present impairment. [ 134 ] The two testing methods (breath samples and buccal swabs) are prescribed by sections 6.1 and 6.2 of the RegDoc.

Under the third – and arguably the most contentious – bodily sample method contained in the RegDoc, Licensees will be required to conduct urine testing in a secure and private testing location, a measure intended to protect bodily integrity and reduce, as the Respondents assert, any affront to privacy and dignity of Safety-Critical Workers ( R v SAB at para 44). [ 135 ] The Respondents counter that the manner in which the testing is carried out is reasonable for two primary reasons.

First, as mentioned above, while the collection of bodily samples can be intrusive, they urge this Court to use a flexible approach, one that considers other contextual factors, such as the narrow scope of the RegDoc, and the absence of disciplinary consequences that flow from a positive test result.

Second, they emphasize that the testing methods contained in the RegDoc are highly reliable. [ 136 ] As I have already addressed the intrusiveness of the collection of bodily samples as well as the need for a flexible approach and the consideration of contextual factors due to the regulatory context, I will focus on the reliability of the testing methodology of the RegDoc in my analysis of the reasonableness in the testing methodology. [ 137 ] The Applicants argue that the alcohol and drug testing methods outlined in the RegDoc actually detect the amount of alcohol and/or drug that an individual has taken, which can only be used to determine whether an individual is intoxicated, but cannot be used to accurately measure the level of impairment of an intoxicated individual.

They point to the Butler Report, which suggests that no alcohol and/or drug testing method can actually and directly measure an individual’s level of impa

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