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Energy - Nuclear. Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court canvasses the Nuclear Safety and Control Act regime:A. The applicable legislative framework
[7] Nuclear safety in Canada is governed by the Nuclear Safety and Control Act, S.C. 1997, c. 9 (the Act) and the regulations adopted thereunder. The Act’s purpose is two-fold, as outlined in section 3 of the Act:To limit the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information; and
To implement in Canada, measures to which Canada has agreed respecting international control of the development, production and use of nuclear energy, including the non-proliferation of nuclear weapons and nuclear explosive devices. [8] The Commission is established by section 8 of the Act. It has a dual role, being both a regulatory and an adjudicative body. Consistent with the Act’s purpose, the Commission is tasked with regulating the development, production and use of nuclear energy and the production, possession and use of nuclear substances and prescribed equipment, in a manner that: (a) prevents "“unreasonable risk”" to the environment, the health and safety of persons, and national security associated with those activities; and (b) achieves conformity with measures of control and international obligations to which Canada has agreed (subsection 9(a)).
[9] As Canada’s sole nuclear regulator, the Commission is empowered to issue licences to persons wishing to carry any of these regulated activities, which are otherwise prohibited. This power entails the authority to issue, renew, suspend, in whole or in part, revoke or replace a licence, or authorize its transfer (sections 24–26). It entails, as well, the power to subject licenses to "“any term or condition that the Commission considers necessary for the purposes of [the] Act”" (subsection 24(5)).
[10] The Commission is also entrusted with a fairly wide regulation-making authority, albeit subject to Governor in Council’s approval (subsection 44(1)). This authority includes the power to make regulations respecting the protection of the environment and the health and safety of persons from any risks associated with licensed activities (paragraph 44(1)(f)), and the qualifications and training of nuclear facility workers (paragraph 44(1)(k)).
[11] The body of regulatory instruments adopted by the Commission is quite substantial and covers a number of subject matters ranging from general nuclear safety (General Nuclear Safety and Control Regulations, S.O.R./2000-202), radiation protection (Radiation Protection Regulations, S.O.R./2000-203), and packaging and transport of nuclear substances (Packaging and Transport of Nuclear Substances Regulations, 2015, S.O.R./2015-145) to the classification of nuclear facilities (Class I Nuclear Facilities Regulations, S.O.R./2000-204, and Class II Nuclear Facilities and Prescribed Equipment Regulations, S.O.R./2000-205).
[12] In particular, the General Nuclear Safety and Control Regulations (the General Regulations) provide a general framework for the issuance, renewal, amendment, abandonment, revocation or replacement of a licence (sections 3–6), and lists grounds upon which the Commission may on its own motion renew, suspend, amend, revoke or replace a licence (section 8). One of the grounds listed in section 8 is a licensee’s failure "“to comply with the Act, the regulations made under the Act or the licence”" (paragraph 8(2)(c)).
[13] The General Regulations also impose a number of obligations on licensees, including that of taking "“all reasonable precautions to protect the environment and the health and safety of persons and to maintain the security of nuclear facilities and of nuclear substances”" (paragraph 12(1)(c)). Similarly, the General Regulations impose on workers an obligation to "“comply with the measures established by the licensee to protect the environment and the health and safety of persons”" (subsection 17(b)).
[14] More specifically, when it comes to Class I nuclear facilities, the Class I Nuclear Facilities Regulations (the Class I Regulations) provide that all licence applications for such a facility must contain, in addition to the information required by the General Regulations, "“the proposed human performance program for the activity to be licensed, including measures to ensure workers’ fitness for duty”" (subsection 3(d.1)).
[15] No one in this case seriously disputes that the nuclear industry in Canada is highly regulated.
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