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Statutes and Regulations - Statutory Instruments. Power Workers’ Union v. Canada (Attorney General) ['regulatory document']
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 considers the 'regulatory document', a form of statutory instrument:[16] The requirements for pre-placement and random alcohol and drug testing are found in what is called a "“regulatory document”". ....
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[19] Regulatory documents are not regulatory instruments per se, as are the regulations adopted pursuant to subsection 44(1) of the Act. According to the Commission’s evidence, regulatory documents "“explain to licensees and applicants what they must achieve in order to meet the requirements set out in the [Act] and the regulations made under the [Act]”". They contain mandatory requirements and provide for guidance as well. They are "“typically implemented after a long consultation process and are utilized by the [Commission] frequently to implement standards and requirements across various areas of the nuclear industry.”" (Hunter Affidavit at paras. 27−30).
[20] Regulatory documents that form part of a license are those referenced in what is called the licensee’s "“Licensing Basis”", which is a document that "“sets out the boundaries for a licensees [sic] regulated nuclear activity and establishes the basis for how the [Commission] assesses the licensee’s compliance with its license.”" (Hunter Affidavit at para. 22).
[21] The "“Licensing Basis”" and by extension the regulatory documents to which it refers, are tools developed by the Commission to allow it "“to regulate the nuclear industry in a manner that is adaptive and flexible to new science, operational experience, and changing international obligations.”" (Hunter Affidavit at para. 24).
[22] RD2.2.4 forms part of the "“Licensing Basis”" of the Licensees’ licences.
[23] I note that the Impugned requirements are yet to be implemented due to a stay order issued first by the Federal Court and then by this Court, pending final disposition of the present matter (Power Workers’ Union v. Canada (Attorney General), 2022 FC 73 and Power Workers’ Union v. Canada (Attorney General), 2023 FCA 215) (the Stay Orders).
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B. The alternative administrative law claim
[37] The Application Judge dismissed both of the appellants’ contentions that the Impugned requirements were unreasonable. First, he held that, contrary to the appellants’ submissions, the Act provided the Commission with "“the authority and the discretion to choose the instrument under which to implement pre-placement and random testing provisions”". The decision to opt for a regulatory document, he said, was due to this type of instrument’s "“flexibility and adaptability”" and was reasonably informed "“by changing circumstances such as guidance coming from the [International Atomic Energy Agency] after the nuclear accident in Fukushima [Japan], evolving international practices, the legalization of cannabis in Canada, evolving research on the accuracy and efficacy of drug and alcohol testing, and divergent stakeholders demands.”" (Decision at para. 195).
[38] More particularly, the Application Judge was satisfied that the Commission could use the broad powers conferred on it by subsection 24(5) of the Act "“to add mandatory requirements to the licence.”" (Decision at para. 198). He was also satisfied that the inclusion of the Impugned requirements into RD2.2.4, after a decade-long process of consultation and outreach that led to the publication of that instrument, was done in conformity with the participatory rights of the various stakeholders, including the appellants (Decision at para. 199).
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