SaskEnergy had two gas line strikes on its hands, three years apart, both caused by ordinary human error rather than anything sinister. In 2019, a crew near Moose Jaw trenched into a pipe after the location markers turned out to be wrong and nobody stopped to double-check.
In 2020, a backhoe operator near White Bear First Nation caught a line that had drifted 18 inches from where it was supposed to be, because the tracer wire had come loose. Nobody was hurt. Nobody was drunk or high, either, as it turned out, since all five workers involved were sent for drug and alcohol testing and all five came back negative.
The company’s reasoning, according to an arbitrator who later reviewed the case, was not that anyone showed signs of impairment. It was that experienced workers had broken clear safety rules in a way that seemed hard to explain, and testing would serve as a reminder to take the rules more seriously next time. The Saskatchewan Court of Appeal has now confirmed what the arbitrator and a lower court already found: that is not a legitimate reason to test anyone, and the five workers are entitled to the compensation they were awarded, ranging from $1,500 to $2,000 each.
What the policy said
The company’s drug and alcohol policy, like most, allowed post-incident testing where it amounted to “a reasonable line of enquiry” into what caused a significant incident, or where there were “reasonable grounds to believe” substance use might have contributed. SaskEnergy argued that the workers’ failure to follow training, taken together with their inability to explain why they hadn’t, met that bar.
The arbitrator disagreed, and did so with an important distinction: workers make mistakes, sometimes serious ones, without impairment ever entering into it. The question was never whether the incidents were significant. Everyone agreed they were. The question was whether anything about them pointed toward drugs or alcohol, and on that point the company had nothing.
No manager asked the workers if they seemed unusual. No manager asked whether they might have consumed anything. The investigation, such as it was, consisted of a phone call to the crew lead.
‘Looks’ like due diligence
There is a reason employers reach for testing after incidents like these. It looks like due diligence. It produces a document. It signals that safety is being taken seriously, to a regulator, an insurer, or a plaintiff’s lawyer down the road. None of that makes it lawful when the actual purpose is deterrence rather than investigation. The arbitrator was blunt about this: SaskEnergy required the tests “not because they might have consumed alcohol or drugs but as a deterrent to ensure they would be more cognizant of safety rules in the future.” A test administered for that reason is not a workplace safety measure. It is a punishment dressed up as a precaution, and it treats an employee’s body as available for inspection whenever a manager wants to make a point.
SaskEnergy’s other argument, on appeal, concerned how it tried to fight the case after losing. There was no transcript of the arbitration hearing, so the company filed an affidavit from an employee who had attended and wrote out her recollection of what various witnesses had said, organized helpfully by point. The court was unimpressed.
The affidavit was assembled seven and a half months after the hearing by someone with an obvious stake in the outcome, and it covered only the parts of the testimony that supported the company’s case. One earlier ruling, cited approvingly by the court, described a similar attempt at reconstruction as “an obvious, impermissible attempt by the Employer to backfill its position on judicial review by colouring and highlighting selective testimony.”
The court also noted, with some sympathy for anyone who has ever tried to referee a dispute about who said what, that allowing both sides to file competing recollections would leave a reviewing judge “hopelessly lost” between one account and another.
A common leap, but not a legal one
What makes this case useful is how ordinary the underlying facts are. Nobody was fired. Nobody was accused of anything dramatic. The incidents were real and worth investigating, and the company’s instinct to respond forcefully was not unreasonable on its face. What went wrong was the leap from “this should not have happened” to “therefore we should test.” That leap is common, and it is precisely the one the law does not permit.
A drug and alcohol policy that authorizes testing after significant incidents is not a blank cheque triggered by the incident itself. It requires something more: some fact, however modest, that points toward substance use as a possible cause, not merely the reasoning is that the outcome. Failing to daylight a gas line before trenching is a training and supervision problem. Treating it as though it might be a chemical one, without a shred of evidence pointing that way, is what invited five separate awards of compensation and two levels of judicial scrutiny.
Employers who want to use testing as a safety lever have other tools available to them, training refreshers, closer supervision, disciplinary process, none of which require anyone to produce a urine sample to make a point.
The instinct to reach for testing after something goes wrong is understandable. It is also, on this record, expensive.
