Tuesday, 18 June 2013

Reasonableness, Again: Irving Paper Mill

Luckily for me, the Supreme Court of Canada's decision on Friday in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 was not unanimous. Otherwise, I would have had to buy a hat and eat it. I discussed the decision on CBC Radio New Brunswick on Friday: you can listen to the clip here.

The central issue was interesting. The employer here had unilaterally imposed mandatory random alcohol testing for employees holding safety sensitive positions. Labour law principles are clear here: a test of reasonableness applies to any such imposition.

In the present case, a majority of the arbitration board concluded that the invasion of employee privacy rights was not justified by the evidence presented to it.

Both the first-instance court (2010 NBQB 294) and the New Brunswick Court of Appeal (2011 NBCA 58) quashed the decision. A particular bone of contention was a distinction made by the board between "ultra-dangerous" and merely "dangerous" workplaces. Surely, Robertson J.A. held, once it is accepted that catastrophic harm can result from a breakdown at a particular facility any such distinction is flawed.

By way of a majority decision by Abella J., the Court restored the board's decision, though taking care not to endorse the distinction between the dangerous and the ultra-dangerous. As she explained, relying on the arbitral jurisprudence, a balancing exercise is necessary. Employees' privacy rights, on one side, versus risks to safety, on the other:
[31]   But the dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety sensitive — is, while clearly and highly relevant, only the beginning of the inquiry.  It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.
On the facts, there were 8 incidents over a 15-year period. Abella J. concluded that the arbitrator was entitled reasonably to come to the conclusion that this evidence did not outweigh the invasion of the employees' privacy interests.

Rothstein and Moldaver JJ. filed a lengthy set of dissenting reasons, which were joined by McLachlin C.J. Their quibble was that the board had imposed an unduly onerous evidentiary standard:
[104]                     Two issues become immediately apparent from the board’s conclusion as to the evidence.  First, the standard it applied was one of “significant problem” (based on the final version of the reasons) or a “serious problem” (based on the draft).  In either case, as we have just discussed, that is not the standard reflecting the arbitral consensus for justification of a random alcohol testing policy.  In none of the cases of which we are aware, whether those that upheld such policies or those that set them aside, have we seen language requiring evidence of a “significant” or “serious” problem.  Rather, the standard has been that of evidence of a problem.  The difference between the two approaches is obviously a marked one and it cannot be ignored.
[105]                     Second, the board required that the evidence of alcohol use be “tied” or “causally linked” to “accident, injury and near-miss history” at the plant.  Again, there is no support for such a requirement in the arbitral jurisprudence.  While it is true that the board in Strathcona relied on survey data that indicated alcohol use “was thought to be a contributing factor” in workplace incidents (p. 56), there is no support in that case for the conclusion that the employer must establish cause and effect between alcohol use and a workplace incident.  Indeed, the reasons in Strathcona say exactly the opposite:
Some comments.

1. The characterization problem I have previously discussed reared its head again. It is as if the majority and dissenting judges read two entirely different arbitral decisions. This is a  problem when reasonableness is used as an all-encompassing standard of review. One has to decide what a decision says before determining whether it is reasonable.

I would tentatively suggest that when two alternative readings of a decision are open, the reviewing court should adopt the reasonable one. Here, the majority treated the decision as a balancing exercise: it seemed as if the evidence simply did not satisfy the board that the interference with privacy rights was justified. But the dissenting judges, accused by Abella J. of going on a "line-by-line treasure hunt for error" (at para. 54), saw an impermissibly elevated evidentiary standard.

Even if one accepts that both of these readings of the board's decision were reasonably open to the reviewing court, a properly deferential court should adopt the reasonable reading over the unreasonable one. Trading rhetorical barbs about the intrusiveness of review strikes me as less helpful than a frank recognition that, in reading administrative decisions, two possibilities are often present and in choosing between them a court can be more or less deferential.

2. For what it's worth, I don't accept that both readings were reasonably open and would ally myself with the majority. I think it is tolerably clear that the board used language about evidence as a description of its conclusion rather than its preferred operative test.

Take the perspective of someone interpreting the Irving Paper decision: I certainly think that a future arbitrator looking at the board's decision would conclude that to justify random alcohol testing, an employer must provide convincing evidence of a problem. That seems perfectly reasonable to me.

Even the distinction between dangerous and ultra-dangerous workplaces is (just about) defensible on a deferential reading. There are clearly some categories of job (e.g. airline pilots) in which the expectation of privacy is greatly diminished by virtue of the risks associated with the work involved, such that no evidence of potential harm is required to justify random testing. But in most employment situations, the expectation of privacy will not be so diminished and some evidence will be required. Referring to distinct categories seems like a clumsy way of expressing the idea of variable expectations of privacy.

3. An alternative reading of recent Canadian cases on reasonableness is that two two distinct approaches are emergent: the restorative (in which reviewing courts strive to present a decision in the best possible light, so as to uphold it) and the restrictive (in which reviewing courts approach decisions with scepticism and look closely for error). Readers are encouraged to consult Matthew Lewans, "Deference and Reasonableness Since Dunsmuir" (2012), 38 Queens LJ 59.

4. It is interesting that both the majority and dissenting justices were happy to allow the arbitral jurisprudence to set the parameters of the board's decision. There was no question of the Court revising or doing away with important parts of a body of labour law that has been long in the making by expert decision-makers. The observation that a common law right has been created "out of the arbitral ether" seems valid to me (albeit that the arbitrators are drawing from a deep normative well), but hardly a basis for objection.

Once administrative decision-making structures have been created, they will inevitably develop their own norms; given that they are usually better placed to do so, we should laud this development, not question it. Accordingly, Robertson J.A.'s plea for correctness review went unanswered (if not unheard):
[5]            In my view, the answer to the question is subject to the review standard of correctness for two reasons. First, the question posed raises a pure question of law, one that seeks to strike a reasonable balance between an employer’s legitimate interest and obligation to provide a safe workplace and the privacy and dignity interests of employees or, in some instances, their freedom from discrimination. As such, the case raises a question of general importance in the law over which the arbitration board cannot assert a greater relative expertise than the courts. Indeed, some might argue that at its core this appeal is of importance to the public at large having regard to the location of the kraft mill. Second, the arbitral jurisprudence is not always reconcilable or easily so. Often, the same case is cited for opposing propositions. Moreover, the distinction which the arbitration board makes between dangerous and ultra dangerous workplaces is simply not part of the arbitral framework surrounding the validity of alcohol and drug testing policies. The same holds true in regard to the requirement that the employer adduce evidence of a significant alcohol or drug problem in the workplace. Hence, it falls on this Court to provide certainty so far as the law of New Brunswick is concerned...
5. Should members of the wider community have a right to be heard before arbitrators take these sorts of decisions? Here, the plant was located in a populous area. Disaster would have had consequences beyond the confines of the workplace. Abella J. was happy enough that management and unions could come to conclusions around the bargaining table that respect the rights of those further removed:
[18]                          It may be tempting to suggest that dangerous unionized workplaces should be beyond the reach of the collective bargaining regime, freeing an employer both from the duty to negotiate with the union and from the terms of the collective agreement.  This suggests, Cassandra-like and evidence-free, that collective bargaining is the altar on which public and workplace safety is sacrificed and that only employers have the capacity to address these concerns.
[19]                           But the reality is that the task of negotiating workplace conditions, both on the part of unions and management, as well as the arbitrators who interpret the resulting collective agreement, has historically — and successfully — included the delicate, case-by-case balancing required to preserve public safety concerns while protecting privacy. Far from leaving the public at risk, protecting employees – who are on the front line of any danger – necessarily also protects the surrounding public. To suggest otherwise is a counter-intuitive dichotomy. 
Rothstein and Moldaver JJ. suggested that legislators might like to consider wider involvement:
[71]                          But the fact that the public interest — not merely that of employer and employee — is relevant in cases such as this one may counsel a reassessment of the legislative choice to delegate policy-making for drug and alcohol testing to the collective bargaining process and to labour arbitrators.  It is one thing for employers and employees to negotiate a balance as they see fit with respect to their own privacy and safety.  It is a different matter, however, to leave the public interest to the vicissitudes of the bargaining table.  Of course, it would be counterintuitive to suggest that employees do not care for their own safety or, indeed, the safety of their neighbours.  The point is simply that employees, employers, and the public may each strike the balance between privacy and safety differently.  And where disputes between employers and employees emerge, it is not immediately apparent to us why an adjudicative body that is expert in the resolution of private labour disputes, but not in weighing broader considerations concerning the safety and environmental interests of the public at large, is best positioned to serve as the guardian of the public interest.  Indeed, nothing in the relevant legislation even requires, let alone suggests, that labour arbitrators should assume this role.
[72]                          The New Brunswick legislature has within the scope of its legislative authority the power to take drug and alcohol testing outside the purview of the collective bargaining process, as some other legislative bodies have done in certain contexts.  See, e.g., Code of Federal Regulations, 49 C.F.R. Part 382 (United States); Rail Safety (Adoption of National Law) Regulation 2012, No. 662 (New South Wales); Railway Safety Act 2005 (Ireland).  Indeed, some experts have suggested there is an “overwhelming argument” in this country for “legislative direction and definition that would add consistency, uniformity of meaning, and predictability for all workplace stakeholders” (N. Keith and A.J. Wiggins, Alcohol and Drugs in the Canadian Workplace: An Employer’s Guide to the Law, Prevention and Management of Substance Abuse (2008), at p. 240).  That decision, however, is one for the New Brunswick legislature and not for this Court — no matter how strongly we might favour such a step.
I don't have a position one way or the other on this question, but it is worth pondering. And thanks to the dissenting judges for a reference to an Irish statutory provision. Or to the clerk who dug it out, perhaps one of Irish dissent -- wherever green is worn!

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