View cases - Stewart McKelvey

- 13 -alcohol testing policy: J.D. Irving Ltd. v. Communications, Energy and Paperworkers’Union, Local 104 and 1309 (Drug and Alcohol Policy Grievance), [2002] N.B.L.A.A.No. 7 (QL). More recently, the decision of Arbitrator Margo R. Newman in NavistarCanada Inc. v. National Automobile, Aerospace, Transportation and General WorkersUnion of Canada (CAW-Canada) Local 504 (Substance Abuse Grievance), [2010]O.L.A.A. No. 227 (QL), offers a penetrating and exhaustive analysis of the jurisprudencerelevant to the issues at hand. I single out such decisions, not because they are oweddeference as of right, but because deference is earned through the production of reasonswhich move beyond the Dunsmuir requirement of rationality and intelligibility into therealm of simple persuasiveness.2011 NBCA 58 (CanLII)[26] While I have adopted the correctness standard in regard to the question oflaw posed above, there is one aspect of the arbitration board’s decision for which thereview standard of reasonableness does apply. The board held that Irving had failed toestablish a “sufficient case” that its kraft mill could be placed in the same ultra-dangerouscategory of risk such as a “nuclear plant, an airline, a railroad or a chemical plant”. In myview, the finding that a kraft mill does not fall within the same dangerous category as arailroad or chemical plant is simply “unreasonable”.[27] Finally, if I am mistaken and deference is owed to the arbitration board’sruling in regard to the need for Irving to adduce evidence of an existing alcohol or drugproblem in the workplace in order to justify its decision to adopt the random testingpolicy, I take refuge in the application judge’s analysis and application of the“reasonableness” standard of review and his reasons for setting aside the board’sdecision. In particular, I would draw attention to the judge’s analysis pertaining toinferences which the board drew from the evidence and which are not discussed in thesereasons because of the application of the correctness standard.