Case: SaskEnergy Incorporated v Unifor Local 649, 2026 SKCA 94 (CanLII)
Keywords: labour law; evidence; judicial review application
Synopsis:
After two workplace incidents, the Appellant SaskEnergy Incorporated makes a management decision requiring five employees – each a member of Unifor Local 649 – to undergo drug and alcohol testing. The employees grieve. The question before the Arbitrator: “[i]n what circumstances can an employer appropriately require an employee to submit to drug and alcohol tests following an accident at work?” (See UNIFOR, Local 649 v Saskenergy Incorporated, 2022 CanLII 126109 (SK LA), at para. 1).
The Abritrator issues a declaration that the Appellant improperly required them to submit to testing and awards compensation. (See para. 1). The Appellant applies to the Court of King’s Bench for judicial review of the decision. A preliminary issue arises: because the arbitration hearing was not recorded, there is no transcript of the evidence. The Court of King’s Bench (Layh J.) finds that affidavits provided by the Appellant’s employees (e.g., individuals who had attended the hearing and could provide their recollection of what some of the witnesses had said) are inadmissible and cannot be considered. (See para. 3). In separate reasons, the Court of King’s Bench (Layh J.) upholds the Arbitration decision as “reasonable”. (See para. 4).
The Appellant appeals both decisions; the Court of Appeal (Kilback, Caldwell, and Bardai JJ.A.) dismisses both appeals. (See para. 5).
Importance:
This case raises two interesting, practical issues:
- What courts should do where there is no transcript of proceedings in the context of a judicial review application; and
- Under what circumstances can an employer ask unionized employees to submit to drug and alcohol tests?
Regarding the first issue, the Court of Appeal outlined the history and relevant principles at paras. 27-34. For the Court, “as a general proposition, judicial review should be restricted to the evidentiary record that was before the decision maker” as “[t]his ensures that courts will properly apply the governing standards of review instead of simply substituting their own views for those of the decision maker”. (See para. 33).
Importantly, however, there are a number of exceptions – this Court of Appeal derives them from Stratas J.A.’s reasons in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (i.e., “the record may be supplemented on judicial review where the proffered evidence: (i) provides background that assists in understanding the issues; (ii) reveals procedural defects not found in the evidentiary record; (iii) highlights the absence of evidence in relation to a particular finding; or (iv) where appropriate, elucidates the record upon which the administrative decision was based”). (See para. 34).
In this case, the Court of Appeal found no error in ruling the affidavits of the Appellant’s employees were inadmissible. (See para. 53). For the Court,
- this is a matter of discretionary judgment – there is no “one size fits all” rule governing when it is appropriate to supplement the record on judicial review; and
- the Court of King’s Bench concern that the Appellant was only proffering “selected parts of the relevant testimony” was “well founded” because “evidence adduced to elucidate or fill in evidentiary gaps should normally not represent only a one-sided view of the record”. (See paras. 42, 44-45).
As to the second issue, the Court of Appeal found that the Arbitrator’s decision was not “unreasonable” – that he “plainly seized the substance of the matter…and meaningfully ‘grappled’ with the key issues in the arbitration”. (See paras. 74-75). The Court of Appeal also found that the Court of King’s Bench decision did not “buttress” the Arbitrator’s reasons. (See paras. 96, 97-101).
Counsel for the Appellant: Jana Linner, K.C., Jianna Rieder (MLT Aikins, Regina)
Counsel for the Respondent: Gary Bainbridge, K.C. (BJH Law, Saskatoon)