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Book of Authorities for Submissions of the Power Workers'union on the Draft Regulatory Document 2.2.4 to the Canadian Nuclear Safety Commission

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Book of Authorities for Submissions of the Power Workers'union on the Draft Regulatory Document 2.2.4 to the Canadian Nuclear Safety Commission BOOK OF AUTHORITIES FOR SUBMISSIONS OF THE POWER WORKERS'UNION ON THE DRAFT REGULATORY DOCUMENT 2.2.4 TO THE CANADIAN NUCLEAR SAFETY COMMISSION VOLUME 3 REGARDING REGULATORY DOCUMENT, REGDOC-2.2.4, Fitness for Duty March 7, 2016 Chris Dassios Emily Lawrence General Counsel External Counsel Power Workers' Union Paliare Roland Rosenberg Rothstein LLP 244 Eglinton Ave. East 155 Wellington Street West, 35th fl, Toronto ON M4P 1K2 Toronto, ON M5V 3H1 T: 416-322-2444 T: 416-646-7475 F: 416-322-2436 F: 416-646-4301 E: [email protected] E: [email protected] Richard Stephenson External Counsel Paliare Roland Rosenberg Rothstein LLP 155 Wellington Street West, 35th fl. Toronto, ON M5V 3H1 T: 416-646-4325 F: 416-646-4301 E: [email protected] Index Volume 1 Tab 1. Irving Pulp & Paper Ltd v CEP, Local 30, 2013 SCC 34 2. Canadian National Railway Co. and CAW-Canada (Re) (2000), 95 LAC (4th) 341 (Picher) 3. Greater Toronto Airports Authority v P.S.A.C., Local 0004, [2007] LV1 3734-2, 90 CLAS 177 (Devlin) 4. Canadian Civil Liberties Assn. v. Toronto Dominion Bank (1998), 163 DLR (4th) 193 (Fed CA) 5. Esso Petroleum Canada and C.E.P. Loc 614 (Re) (1994) 56 LAC (4th) 440 (McAlpine) 6. Trimac Transportation Services-Bulk Systems v TCU (1999), [2000] LVI 3090- 2, 88 LAC (4th)237 (Can Arb) 7. Suncor Energy Inc and CEP, Local 707(Woods), Re, 2008 CarswellAlta 2503, [2008] AGAA No 11 8. Bombardier Transportation v Teamsters Canada Rail Conference — Division 660, 2014 CanLll 5318(CA LA) 9. Re Provincial-American Truck Transporters and Teamsters Union, Local 880 (1991), 18 L.A.C. (4th) 412 (Ont.) 10. R v Dyment,[1988] 2 SCR 417 11. R v Dion,[1986] RJQ 2196 (QSJ) 12. Jackson v Joyceville Penitentiary, [1990] 3 FC 55 (TD) 13. Blencoe v British Columbia,(2002) 2 SCR 307 Volume 2 Tab 14. R v Collins, [1987] 1 SCR 265 15. R v Grant, 2009 SCC 32 16. R v Oakes,[1986] 1 SCR 103 17. Chiasson v Kellogg Brown & Root(Canada) Co, 2006 ABQB 302 18. Canada (House of Commons) v Vaid, 2005 SCC 30 19. British Columbia (Public service Employee Relations Commission) v British Columbia Government and Service Employees' Union (B.C. G. S. E. U.), [1999] 3 SCR 3 20. British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights),[1999] 3 SCR 868 21. Entrop v Imperial Oil Ltd, 2000 CarswellOnt 2525,[2000] OJ No 2689 22. Weyerhaeuser Co. v. CEP, Local 447(2006), 154 L.A.C. (4th) 3(Sims) 23. Renaud v Central Okanagan School District No. 23, 1992 CarswellBC 257, [1992] 2 SCR 970 24. Canadian Pacific Limited v UTU (1987) 31 LAC (3d) 179 25. Mechanical Contractors Association Sarnia v United Association of Journeymen and Apprentices Of The Plumbing & Pipefitting Industry of the United States and Canada, Local 663, 2013 CanLI1 54951 (Arb Surdykowski) 26. Re Graymount Western Canada Inc. and Cement, Lime Gypsum & Allied Workers, Local D575 (2002), 114 LAC (4th)269 27. Hamilton Health Sciences and O.N.A.(Re) (2007), 167 LAC (4th) Volume 3 Tab 28. Barb Butler and Associates, Recent Alcohol and Drug Workplace Policies in Canada: Considerations for the Nuclear Industry (2012), prepared for Canadian Nuclear Safety Commissino, available online: Nuclear Safety http://nuclearsafetv.gc.ca/pubs cataloque/uploads/March-2012-INFO-0831- Recent-Alcohol-and-Dru -Work lace-Policies-in-Canada Considerations-for- the-Nuclear-Industry e.pdf> 29. Ontario Law Reform Commission, Report on Alcohol and Drug Testing in the Workplace, (Toronto: Ontario Law Reform Commission, 1992), online: Internet Archive, Osgoode Hall Law Library http://ia700708.us.archive.orq/32/items/reportondrucialco0Oonta/reportondrugg Ico00onta.pdf> 30. Barb Butler & Associates, "Employee assistance programs" (2006), online: Barb Butler & Associates http://www.butlerconsultants.com/bb benefits.html 31. R. Evans, Chair, Drug Testing in the Workplace: Report of the Independent Inquiry into Drug Testing in the Workplace, (New York: Joseph Rowntree Foundation, 2004), online: Joseph Rowntree Foundation < http://www.ukcia.org/research/DrucTesting InWorkp lace.pdf> 32. Privacy Commissioner of Canada, Drug Testing and Privacy, (Ottawa: Minister of Supply and Services Canada, 1990), online: Office of the Privacy Commissioner of Canada http://www.priv.qc.ca/information/02 05 12 e.pdf 33. Canada's Nuclear Regulator, Fitness for Duty: Proposals for Strengthening Alcohol and Drug Policy, Programs and Testing, Discussion Paper DIS-12-03 (Ottawa, ON: April 2012) 34. Debra R. Comer, "A Case against Workplace Drug Testing", (May 1994) Organization Science, 5(2): 259 at 260. Tab 28 Canada's Nuclear Regulator Recent Alcohol and Drug Workplace Policies in Canada: Considerations for the Nuclear Industry A report by Barbara Butler and Associates Inc. on the recent changes in arbitrational and legal jurisprudence of workplace policies and testing n Canada Canadian Nuclear Commission canadienne Safety Commission de sCirete nucleaire Recent Alcohol and Drug Workplace Policies in Canada - Considerations for the Nuclear Industry Minister of Public Works and Government Services Canada(PWGSC) 2011 PWGSC catalogue number CC172-81/2012E-PDF ISBN 978-1-100-20145-0 Produced by Barbara Butler and Associates Inc. Published by the Canadian Nuclear Safety Commission(CNSC) CNSC catalogue number: INFO-0831 Extracts from this document may be reproduced for individual use without permission provided the source is fully acknowledged. However, reproduction in whole or in part for purposes of resale or redistribution requires prior written permission from the Canadian Nuclear Safety Commission. Egalement publie enfrancais sous le titre de: Incidence sur l'industrie nucleaire des politiques canadiennes recentes en matib-e de consummation d'alcool et de drogues en milieu de travail Document availability This document can be viewed on the CNSC Web site at nuclearsafety.gc.ca Canadian Nuclear Safety Commission 280 Slater Street P.O. Box 1046, Station 13 Ottawa, Ontario K 1P 5S9 CANADA Tel.: 613-995-5894 or 1-800-668-5284 (in Canada only) Facsimile: 613-995-5086 Email: [email protected] Web site: nuclearsafety.gc.ca March 2012 Recent Alcohol and Drug Workplace Policies in Canada Preface This report was commissioned by the Canadian Nuclear Safety Commission (CNSC) in order to gain more clarity on both the arbitrational and court rulings related to alcohol and drug policies in Canada. At the CNSC's request, Barb Butler and Associates Inc. produced this report with the purpose to provide CSNC staff and stakeholders with a review of the latest legal decisions surrounding alcohol and drug policies and testing in Canada, as well as provide information on industry best practices. Please note that the views expressed here do not necessarily reflect the opinions of the CNSC. March 2012 Recent Alcohol and Drug Workplace Policies in Canada Alcohol and Drug Policies in Canada Executive Summary The Canadian Nuclear Safety Commission (CNSC) commissioned this report as it was examining issues surrounding fitness for duty in the nuclear industry. At the CNSC's request, the report addresses one specific aspect of fitness for duty: alcohol and drug policies. It provides context for reviewing policy approaches, starting with general background on alcohol and drug issues in the workplace, performance impacts and recent survey data on use patterns. Companies in several industry sectors across the country have introduced employee drug and alcohol policies over the past 20 years. Trends in the transportation, oil and gas and mining sectors are provided, along with information on contractor requirements set by the owner sites. Also included is an overview of some of the legal issues that employers face, including occupational health and safety and Criminal Code requirements, as well as jurisprudence around accountability for the actions of anyone operating a company vehicle, social host liabilities and searches. These issues also include obligations under federal and provincial human rights laws, which prohibit discrimination on the basis of a disability — including current or former alcohol or drug dependence. The report also addresses direction from the Supreme Court regarding justification for introducing a policy (establishing that there is a bona fide occupational requirement). Examples of why organizations may initiate policies are provided, and the process for policy development and consultation with stakeholders, including unions, are explained. Next, a review of suggested best practices in the policy statement is discussed, including: the importance of employee assistance programs, communication/education, training of supervisors regarding their responsibilities, and finally, establishment of a range of investigation tools to help meet the policy's overall objective. The strengths and limitations of the various policy components are reviewed, with the conclusion that each organization needs to identify the best mix of programs to meet its objectives. Some background on the concept of deterrence and how this plays a role in workplace policies is also reviewed. Statistics have been provided on the results of existing testing programs in Canada and the U.S., along with background information on testing infrastructure. Some details on the technical process of alcohol and drug testing are provided. Additionally, strong recommendations are provided for any organization that considers testing. In order to ensure that a fair and accurate process is implemented it is strongly encouraged that workplaces which are considering substance testing, contract these services to qualified service providers. There have been several key rulings in this area, and summaries of human rights, arbitration and court rulings are provided, but should not be relied on as legal advice. At this point, there has been no government regulation or direction for employers when it comes to introducing workplace policies and testing requirements, so employers need to be guided by these rulings when considering policy decisions. Again, as a word of caution this report is a summary of the jurisprudence related to workplace drug and alcohol testing and should not be taken as legal advice.
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