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Labour relations Arbitration Collective agreements Policy grievance Mandatory random alcohol testing policy Inherently dangerous workplace Judicial review Standard of review Whether the Court of Appeal erred in engaging in a standard of review analysis Whether the Court of Appeal erred in its standard of review analysis Whether the award was reasonable.

The respondent, Irving Pulp & Paper, operates a kraft paper mill along the banks of the St. John River. In 2006, Irving unilaterally adopted a workplace policy which included mandatory random alcohol testing, by breathalyser, for employees holding safety sensitive positions. An Irving employee and member of the union occupying a safety sensitive position was randomly tested. The test revealed a blood alcohol level of zero. Nevertheless, the union filed a policy grievance challenging the reasonableness of the policy on the basis of test set out in KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537, [1965] 16 L.A.C. 73, which was referred to an arbitration panel. Applying a balancing of interests approach, the majority of the arbitration board determined that Irving failed to establish a need for the policy in terms of demonstrating the mill operations posed a sufficient risk of harm that outweighs an employee’s right to privacy. Specifically, the majority concluded Irving had not adduced sufficient evidence of prior incidents of alcohol related impaired work performance to justify the policy’s adoption. The majority concluded that, while the mill operation represented a “dangerous work environment”, the mill operation did not fall within the “ultra dangerous” category such as a nuclear plant or an airline, where employers had a lighter burden of justification. Adopting a reasonableness standard of review, the Court of Queen’s Bench allowed the application for judicial review and quashed the arbitration decision, holding it was unreasonable to require evidence demonstrating a history of alcohol abuse in the workplace once the majority of the arbitration board had concluded the paper mill represented a dangerous workplace. Although the Court of Appeal reversed the application judge on the issue of the standard of review and applied a correctness standard, the Court of Appeal dismissed the union’s appeal.