On May 29, 2025, the Supreme Court of Canada (SCC) dismissed an application for leave to appeal from the decision of the Federal Court of Appeal (FCA) upholding drug and alcohol testing requirements of the Canadian Nuclear Safety Commission. The application for leave was filed after the FCA dismissed the appeal of an earlier 2023 Federal Court decision on Nov.6, 2024.
The testing requirements are a condition placed on individuals to be licensed to operate high security (Class I) nuclear facilities.
The appellants, six affected workers and their unions, claimed that the requirements breached their rights under Sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms and were not saved by Section 1 of the Charter. They also claimed that the Canadian Nuclear Safety Commission's decision to implement the requirements was unreasonable on administrative law grounds.
This article reviews the legislative context, discusses the 2023 Federal Court decision, examines the FCA's decision from a Charter and administrative law perspective, and discusses the implications of the SCC's judgment on the application for leave to appeal.
Key takeaways
The FCA decision demonstrates that interpreting drug and alcohol testing laws in Canada will often require balancing public interest with individual expectations of privacy. In particular:
- A court is likely to consider context, including public safety when determining the reasonableness of drug and alcohol testing This is especially likely during a Section 8 Charter analysis.
- Section 7 of the Charter is unlikely to be engaged when testing is relatively non-invasive and there are no adverse disciplinary consequences from a positive test.
- A worker's expectations of privacy are significantly influenced by the nature of work and the environment in which the work is being performed.
- Taking less intrusive bodily samples, such as breath, urine or saliva, does not automatically attract a high expectation of privacy.
Legislative context
The Nuclear Safety and Control Act, S.C. 1997, c. 9
The Nuclear Safety and Control Act, S.C. 1997, c. 9 (the Act) and its regulations govern nuclear safety in Canada. The Act's purpose is two-fold:
- 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 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.1
Section 8 of the Act establishes the Canadian Nuclear Safety Commission (the Commission), which 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 meets the requirements of the Act. The Commission is empowered to issue licences to persons carrying out these activities.
The General Nuclear Safety and Control Regulations
The General Nuclear Safety and Control Regulations (General Regulations) provide a framework for licencing and list grounds upon which the Commission may renew, suspend, amend, revoke or replace a licence. These regulations also impose a number of obligations on licensees, including taking reasonable precautions to protect the environment and the health and safety of persons and maintain the security of nuclear facilities and nuclear substances.
The Class I Nuclear Facilities Regulations
The Class I Nuclear Facilities Regulations (Class I Regulations) state that licence applications for a Class 1 nuclear facility must contain the proposed human performance program for the activity to be...
