Saskatchewan’s top court has dismissed an appeal from SaskEnergy, in a case which saw employees take issue with the Crown corporation over how it imposed its drug and alcohol testing after two workplace accidents.

The case centres on two separate and unrelated workplace incidents in July 2019 and March 2020.

The July 2019 incident saw a five-person crew hit a natural gas line with a trenching machine while working on an acreage near Moose Jaw – which caused a release of natural gas under pressure.

The second incident in March 2020 saw another five-person crew strike a natural gas line with an excavator while installing natural gas services to three homes on White Bear First Nation.

No one was injured in either of the incidents.

In both cases, SaskEnergy ordered the employees to undergo drug and alcohol testing. All tested negative.

The workers involved filed grievances in response to the decision mandating the testing. The employee’s union argued the required prerequisites were not met for testing under SaskEnergy’s drug and alcohol testing policy. Put simply, the union argued SaskEnergy had no reason to believe drugs or alcohol were contributing factors to either incident.

In the 2019 incident, an arbitrator determined SaskEnergy required its employees to submit to testing not because they may have been impaired but rather as a “deterrent” to ensure the employees would be “more cognizant of safety rules in the future.”

According to the decision, the crew had trouble finding the gas line as it had not been marked properly with flags prior to the operation.

Additionally, the members of the crew looking for the line did not communicate with the worker operating the trenching machine – failing to warn him the line was unaccounted for and was therefore at risk of being struck.

Similarly, in the 2020 incident, the arbitrator found no evidence that should have led SaskEnergy to suspect alcohol or drug impairment – as the reasons for the incident were determined to have been caused by:

• The lack of a hydrovac system at the site – which would have uncovered the buried line safely using pressurized water; and
• The buried line had unexpectedly deviated a foot and a half both vertically and horizontally into the path of the excavator – which was unknown to the group.

The arbitrator upheld the grievances and declared SaskEnergy had improperly required its employees to submit to testing. SaskEnergy was also ordered to pay $1,500 to four of the employees and $2,000 to the remaining man.

A Court of King’s Bench found the arbitrator’s decision and awards were reasonable and dismissed the Crown corporation’s application for a judicial review.

SaskEnergy’s latest appeal, arguing the court was wrong to dismiss both its request for a judicial review and its attempt to file affidavits from two employees to strengthen its case for the review, was similarly dismissed by the Saskatchewan Court of Appeal.