In August, the Saskatchewan Court of Appeal upheld compensation awards for five SaskEnergy natural gas workers who were required to undergo drug and alcohol testing following two separate gas line strikes. SaskEnergy Incorporated challenged both an evidentiary ruling and the judicial review decision that upheld the awards, arguing that the arbitrator’s decision was unreasonable and that additional evidence should have been admitted. The Court of Appeal rejected the company’s arguments and dismissed the appeal.
The first incident took place in July 2019, when workers were installing a natural gas connection at a property near Moose Jaw when their trenching equipment hit an existing gas line. Before excavation began, the crew leader noticed that the markings for the gas and telephone lines were positioned unusually close together and asked a colleague to confirm the gas line’s location. The crew’s hydrovac operator then attempted to expose the line but was unable to find it at the marked location. Work nevertheless continued without an instruction to halt excavation, and the gas line was eventually struck approximately 135 metres from the home.
A second incident took place in March 2020 on White Bear First Nation, where a backhoe operator was working on gas connections for three residences. While expanding the excavation area, the operator accidentally hit an underground gas line. A hydrovac unit was not available at the worksite, and the buried line was ultimately found to be roughly 18 inches away, both horizontally and vertically, from the position indicated by its tracer wire. Importantly, in both cases, all workers involved tested negative for drugs and alcohol, and none was disciplined.
The five workers challenged SaskEnergy’s decision to test them, arguing that the circumstances did not meet the requirements set out in the company’s drug and alcohol policy. An arbitrator agreed with the union, finding that the testing was intended as a deterrent rather than prompted by evidence of possible impairment. SaskEnergy was ordered to compensate four workers from the first incident $1,500 each and the backhoe operator from the second incident $2,000.
Moreover, SaskEnergy sought judicial review of the award and attempted to introduce two affidavits to supplement the record because no recording or transcript of the arbitration hearing existed. A Court of King’s Bench judge rejected the affidavits as unreliable and one-sided and, in a separate ruling, upheld the arbitrator’s decision as reasonable. SaskEnergy appealed, arguing that the judge had incorrectly excluded the additional evidence and that the arbitrator’s decision was unreasonable, but the Court of Appeal rejected both claims.
The court found that the affidavit sought to present the evidence in SaskEnergy’s favour rather than simply complete the record, while also concluding that the arbitrator’s reasoning and assessment of the circumstances surrounding the testing were sound. The appeal was therefore dismissed, with costs awarded to the union.
