Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, (2013) 404 N.B.R.(2d) 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 07, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 404 N.B.R.(2d) 1 (SCC);2013 SCC 34;[2013] EXP 2076;AZ-50976195;[2013] 2 SCR 458;2013 SCC 34 ;359 DLR (4th) 394;[2013] CarswellNB 275;[2013] SCJ No 34 (QL);[2013] ACS no 34

Irving Pulp v. CEPU (2013), 404 N.B.R.(2d) 1 (SCC);

    404 R.N.-B.(2e) 1; 1048 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. JN.020

Renvoi temp.: [2013] N.B.R.(2d) TBEd. JN.020

Communications, Energy and Paperworkers Union of Canada, Local 30 (appellant) v. Irving Pulp & Paper, Limited (respondent) and Construction Owners Association of Alberta, Construction Labour Relations - an Alberta Association, Enform, Canadian National Railway Company, Canadian Pacific Railway Company, Via Rail Canada Inc., Alberta Federation of Labour, Communications, Energy and Paperworkers Union of Canada, Local 707, Canadian Civil Liberties Association, Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters, Canadian Mining Association, Mining Association of British Columbia, Mining Association of Manitoba Inc., Québec Mining Association, Ontario Mining Association, Saskatchewan Mining Association and Power Workers' Union (interveners)

(34473; 2013 SCC 34; 2013 CSC 34)

Indexed As: Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30

Répertorié: Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

June 14, 2013.

Summary:

Résumé:

Irving Pulp and Paper Ltd. operated a kraft paper mill in Saint John, New Brunswick. Irving unilaterally adopted a workplace policy which included mandatory and random alcohol and drug testing for employees holding safety sensitive positions. A tested employee filed a grievance in which he challenged Irving's alcohol testing policy on the basis that "... there was no reasonable grounds to test or a significant accident or incident which would justify such a measure." An arbitration board, by a majority decision, allowed the grievance. Irving applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 367 N.B.R.(2d) 234; 946 A.P.R. 234; 2010 NBQB 294, allowed the application, holding that the arbitration board's decision was unreasonable because of dangerousness in the workplace. The employee's union appealed.

The New Brunswick Court of Appeal, in a decision reported 375 N.B.R.(2d) 92; 969 A.P.R. 92, dismissed the appeal. The court applied a bifurcated standard of review. It applied a correctness standard to the board's analytical framework for determining the validity of the employer's random alcohol testing policy and a reasonableness standard to the board's factual findings. Using that approach, the court substituted its own legal framework and concluded that no balancing of interests was required in a dangerous workplace, whether or not it was unionized. As a result, the court held that employers could unilaterally impose random alcohol testing in any dangerous workplace, unionized or non-unionized, without having to show reasonable cause, such as evidence of an existing problem with alcohol use. The court also found that the board's findings regarding the degree of dangerousness at the workplace were unreasonable. The union appealed again.

The Supreme Court of Canada, McLachlin, C.J.C., Rothstein and Moldaver, JJ., dissenting, allowed the appeal. The Supreme Court held that the Court of Appeal erred in disregarding the Supreme Court's direction that decisions of labour arbitrators were to be reviewed for reasonableness and that deference was to be paid to their legal and factual findings when they were interpreting collective agreements. That misapplication of the standard of review led the Court of Appeal away from its required task of determining whether the board's decision fell within a range of reasonable outcomes, and towards a substitution of its own views as to the proper legal framework and factual findings. It also led the court essentially to disregard the "remarkably consistent arbitral jurisprudence" for balancing safety and privacy in a dangerous workplace, and to impose instead a novel, unfettered and automatic remedy outside the existing consensus and expectations in the labour relations community about how those issues were to be approached under a collective agreement. The court stated that based on the arbitration board's findings of fact and its reliance on the arbitral consensus for determining the scope of the employer's rights under the collective agreement in such circumstances, the board's decision was a reasonable one. It should not be disturbed.

Arbitration - Topic 7803

Judicial review (incl. appeals) - General principles - Nature of review proceeding (incl. standard of review) - [See fifth Labour Law - Topic 6799 and Labour Law - Topic 7112 ].

Courts - Topic 89

Stare decisis, authority of judicial decisions - Prior decisions of same court - Boards and tribunals - [See first Labour Law - Topic 6799 ].

Labour Law - Topic 6704

Industrial relations - Collective agreement - Interpretation - Management rights - Unilateral imposition of rules - [See all Labour Law - Topic 6799 ].

Labour Law - Topic 6791

Industrial relations - Collective agreement - Interpretation - Work rules - General - The Supreme Court of Canada stated that "A substantial body of arbitral jurisprudence has developed around the unilateral exercise of management rights in a safety context, resulting in a carefully calibrated 'balancing of interests' proportionality approach. Under it, and built around the hallmark collective bargaining tenet that an employee can only be disciplined for reasonable cause, an employer can impose a rule with disciplinary consequences only if the need for the rule outweighs the harmful impact on employees' privacy rights. The dangerousness of a workplace is clearly relevant, but this does not shut down the inquiry, it begins the proportionality exercise" - See paragraph 4.

Labour Law - Topic 6799

Industrial relations - Collective agreement - Interpretation - Work rules - Drug and alcohol policies (incl. testing) - The Supreme Court of Canada stated that a carefully calibrated balancing of interests proportionality approach "... has resulted in a consistent arbitral jurisprudence whereby arbitrators have found that when a workplace is dangerous, an employer can test an individual employee if there is reasonable cause to believe that the employee was impaired while on duty, was involved in a workplace accident or incident, or was returning to work after treatment for substance abuse. In the latter circumstance, the employee may be subject to a random drug or alcohol testing regime on terms negotiated with the union. But a unilaterally imposed policy of mandatory, random and unannounced testing for all employees in a dangerous workplace has been overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is reasonable cause, such as a general problem of substance abuse in the workplace. This body of arbitral jurisprudence is of course not binding on this Court, but it is nevertheless a valuable benchmark against which to assess the arbitration board's decision in this case" - See paragraphs 5 and 6.

Labour Law - Topic 6799

Industrial relations - Collective agreement - Interpretation - Work rules - Drug and alcohol policies (incl. testing) - Irving operated a kraft paper mill - Irving, pursuant to the management rights clause in a collective agreement, unilaterally adopted a workplace policy which included mandatory and random alcohol and drug testing for employees holding safety sensitive positions - A tested employee grieved, challenging the alcohol testing policy on the basis that "... there was no reasonable grounds to test or a significant accident or incident which would justify such a measure" - An arbitration board, using a balancing of interests approach (safety vs. privacy) and applying the arbitral consensus, concluded that Irving exceeded the scope of its management rights under the collective agreement by imposing random alcohol testing in the absence of evidence of a workplace problem with alcohol use - On judicial review the arbitration board's decision was set aside - An appeal was dismissed - The union appealed - The Supreme Court of Canada allowed the appeal - The court stated that based on the arbitration board's findings of fact and its reliance on the arbitral consensus for determining the scope of the employer's rights under the collective agreement in such circumstances, the board's decision was a reasonable one - It should not be disturbed - See paragraphs 1 to 55.

Labour Law - Topic 6799

Industrial relations - Collective agreement - Interpretation - Work rules - Drug and alcohol policies (incl. testing) - The Supreme Court of Canada, per Abella, J., stated that "the fact that a workplace is found to be dangerous does not automatically give the employer the right to impose random testing unilaterally. The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances: where there are reasonable grounds to believe that the employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse. It has never, to my knowledge, been held to justify random testing, even in the case of 'highly safety sensitive' or 'inherently dangerous' workplaces like railways (Canadian National) and chemical plants (DuPont Canada Inc. ...) or even in workplaces that pose a risk of explosion (ADM Agri-Industries), in the absence of a demonstrated problem with alcohol use in that workplace. That is not to say that it is beyond the realm of possibility in extreme circumstances, but we need not decide that in this case" - See paragraph 45.

Labour Law - Topic 6799

Industrial relations - Collective agreement - Interpretation - Work rules - Drug and alcohol policies (incl. testing) - The Supreme Court of Canada agreed with an arbitration board that a random alcohol testing policy unilaterally adopted by Irving at a kraft paper mill was an unreasonable exercise of management rights under a collective agreement - The court stated that "This is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified. Moreover, the employer is not only always free to negotiate drug and alcohol testing policies with the union, as was said in Nanticoke, 'such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated' ... But where, as here, the employer proceeds unilaterally without negotiating with the union, it must comply with the time-honoured requirement of showing reasonable cause before subjecting employees to potential disciplinary consequences. Given the arbitral consensus, an employer would be justifiably pessimistic that a policy unilaterally imposing random alcohol testing in the absence of reasonable cause would survive arbitral scrutiny" - See paragraphs 52 and 53.

Labour Law - Topic 6799

Industrial relations - Collective agreement - Interpretation - Work rules - Drug and alcohol policies (incl. testing) - The Supreme Court of Canada held that an arbitration board's decision that a random alcohol testing policy unilaterally adopted by Irving at a kraft paper mill was an unreasonable exercise of management rights under a collective agreement should not have been disturbed on judicial review - The Supreme Court stated that "... the Court of Appeal erred in disregarding the Supreme Court's direction that decisions of labour arbitrators were to be reviewed for reasonableness and that deference was to be paid to their legal and factual findings when they were interpreting collective agreements. That misapplication of the standard of review led the Court of Appeal away from its required task of determining whether the board's decision fell within a range of reasonable outcomes, and towards a substitution of its own views as to the proper legal framework and factual findings. It also led the court essentially to disregard the 'remarkably consistent arbitral jurisprudence' for balancing safety and privacy in a dangerous workplace, and to impose instead a novel, unfettered and automatic remedy outside the existing consensus and expectations in the labour relations community about how those issues were to be approached under a collective agreement" - See paragraph 16.

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Judicial review - Scope of review - The Supreme Court of Canada stated that it could not be seriously challenged, particularly since Dunsmuir v. N.B. (SCC 2008), that the applicable standard for reviewing the decision of a labour arbitrator was reasonableness - See paragraph 7.

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Judicial review - Scope of review - [See fifth Labour Law - Topic 6799 ].

Arbitrage - Cote 7803

Révision judiciaire (y compris appels) - Principes généraux - Nature du recours en révision (y compris la norme applicable) - [Voir Arbitration - Topic 7803 ].

Droit du travail - Cote 6704

Relations industrielles - Convention collective - Interprétation - Droits de la direction - Règles unilatéralement imposées - [Voir Labour Law - Topic 6704 ].

Droit du travail - Cote 6791

Relations industrielles - Convention collective - Interprétation - Règles de travail - Généralités - [Voir Labour Law - Topic 6791 ].

Droit du travail - Cote 6799

Relations industrielles - Convention collective - Interprétation - Règles de travail - Politiques sur les drogues et l'alcool (y compris le dépistage) - [Voir Labour Law - Topic 6799 ].

Droit du travail - Cote 7112

Relations industrielles - Convention collective - Application - Arbitrage - Révision judiciaire - Étendue de la révision - [Voir Labour Law - Topic 7112 ].

Tribunaux - Cote 89

Stare decisis - Autorité des décisions judiciaires - Décisions antérieures du même tribunal - Commissions et tribunaux administratifs - [Voir Courts - Topic 89 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 7, 66].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 2011 SCC 59, refd to. [paras. 7, 65].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [paras. 7, 79].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), refd to. [paras. 17, 59].

United Steelworkers, Local 4487 & John Inglis Co., Re (1957), 7 L.A.C. 240, refd to. [para. 22].

United Brewery Workers, Local 232 & Carling Breweries Ltd., Re (1959), 10 L.A.C. 25, refd to. [para. 22].

Public Utilities Commission of the Borough of Scarborough and International Brotherhood of Electrical Workers, Local 636, Re (1974), 5 L.A.C.(2d) 285, refd to. [para. 23].

United Electrical Radio and Machine Workers of America, Local 524, in re Canadian General Electric Co. (Peterborough) (1951), 2 L.A.C. 688, refd to. [para. 23].

Hamilton Street Radio Co. and Amalgamated Transit Union, Division 107, Re (1977), 16 L.A.C.(2d) 402, refd to. [para. 23].

Lumber & Sawmill Workers' Union, Local 2537 and KVP Co., Re (1965), 16 L.A.C. 73, refd to. [paras. 24, 81].

Toronto (City) et al. v. Canadian Union of Public Employees et al. (1990), 39 O.A.C. 82; 74 O.R.(2d) 239 (C.A.), refd to. [para. 25].

Charlottetown (City) v. Charlottetown Police Association (1997), 151 Nfld. & P.E.I.R. 69; 471 A.P.R. 69 (P.E.I.C.A.), refd to. [para. 26].

Board of Education (Roman Catholic) of Western Avalon v. Newfoundland Association of Public Employees (2000), 191 Nfld. & P.E.I.R. 5; 577 A.P.R. 5; 190 D.L.R.(4th) 146; 2000 NFCA 39, refd to. [para. 26].

St. James Assiniboia Teachers' Association No. 2 v. Board of Education of St. James Assiniboia School Division No. 2 (2002), 170 Man.R.(2d) 69; 285 W.A.C. 69; 222 D.L.R.(4th) 636; 2002 MBCA 158, refd to. [para. 26].

Esso Petroleum Canada v. Communications, Energy & Paperworkers Union, Local 614 (1994), 56 L.A.C.(4th) 440 (B.C. Arb. Bd.), refd to. [paras. 30, 59].

Canadian National Railway Co. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Re (2000), 95 L.A.C.(4th) 341 (Arb. Bd.), refd to. [para. 30].

Weyerhaeuser Co. and International Woodworkers of America, Re (2004), 127 L.A.C.(4th) 73, refd to. [paras. 30, 89].

Navistar Canada Inc. and National Automobile, Aerospace & Agricultural Implement Workers' Union of Canada, Local 504, Re (2010), 195 L.A.C.(4th) 144, refd to. [para. 30].

Rio Tinto Alcan Primary Metal and National Automobile, Aerospace & Agricultural Implement Workers' Union of Canada, Local 2301 (Drug and Alcohol Policy), Re (2011), 204 L.A.C.(4th) 265, refd to. [paras. 30, 59].

Imperial Oil Ltd. v. Communications, Energy and Paper Workers Union of Canada, Local 900 (2006), 157 L.A.C.(4th) 225 (Ont. Arb. Bd.), refd to. [paras. 32, 87].

Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 et al. (2009), 249 O.A.C. 270; 96 O.R.(3d) 668; 2009 ONCA 420, refd to. [paras. 35, 86].

Metropol Security v. United Steelworkers of America, Local 5296 (1998), 69 L.A.C.(4th) 399 (Ont. Arb. Bd.), refd to. [para. 37].

Trimac Transportation Services-Bulk Systems v. Transportation Communications Union (1999), 88 L.A.C.(4th) 237 (Can. Arb. Bd.), refd to. [paras. 37, 77].

Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [2002] B.C.C.A.A.A. No. 9, refd to. [paras. 37, 89].

ADM Agri-Industries Ltd. v. National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada), Local 195, [2004] C.L.A.D. No. 610, refd to. [paras. 37, 90].

Petro-Canada Lubricants Centre (Mississauga) v. Communications Energy and Paperworkers Union of Canada, Local 593 (2009), 186 L.A.C.(4th) 424 (Arb.), refd to. [para. 37].

Greater Toronto Airports Authority v. Public Service Alliance of Canada, Local 0004, [2007] C.L.A.D. No. 243, refd to. [paras. 38, 59].

DuPont Canada Inc. and Canadian Energy and Paperworkers Union of Canada, Local 28-0, Re (2002), 105 L.A.C.(4th) 399, refd to. [para. 45].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 50].

R. v. Shoker (H.S.), [2006] 2 S.C.R. 399; 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 50].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 66].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 66].

Board of Education of Toronto v. Ontario Secondary Teachers' Federation District No. 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 67].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 67].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 74].

Prestressed Systems Inc. and Laborers International Union of North America, Local 625, Re (2005), 137 L.A.C.(4th) 193, refd. to. [para. 76].

Halifax (Regional Municipality) and Nova Scotia Union of Public and Private Employees, Local 2, Re (2008), 171 L.A.C.(4th) 257, refd to. [para. 77].

Monarch Fine Foods Co. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647 (1978), 20 L.A.C.(2d) 419 (Ont. Arb. Bd.), refd to. [para. 77].

United Steelworkers and Triangle Conduit & Cable Canada (1968) Ltd., Re (1970), 21 L.A.C. 332, refd to. [para. 78].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 86, footnote 2].

Continental Lime Ltd. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. D575, Re (2002), 105 L.A.C.(4th) 263, refd to. [para. 89].

Provincial-American Truck Transporters and Teamsters Union, Local 880, Re (1991), 18 L.A.C.(4th) 412, refd to. [para. 93].

Alberta (Minister of Education) et al. v. Canadian Copyright Licensing Agency et al., [2012] 2 S.C.R. 345; 432 N.R. 134; 2012 SCC 37, refd to. [para. 110].

Authors and Works Noticed:

Borack, Jules I., Costs and Benefits of Alternative Drug Testing Programs, U.S. Navy Personnel Research and Development Centre (1998), p. 15 [para. 113].

Brown, Donald J.M. and Beatty, David M., Canadian Labour Arbitration (4th Ed.) (2013 Looseleaf update Release 29), vol. 1, topics 4:1520 [para. 24]; 1:3200 [para. 78].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on National Health and Welfare, Booze, Pills & Dope: Reducing Substance Abuse in Canada, No. 28, 2nd Sess., 33rd Parl. (1987), p. 25 [para. 69, footnote 1].

Canada, Minister of National Health and Welfare, Government Response to the Report of the Standing Committee on Booze, Pills & Dope: Reducing Substance Abuse in Canada (1988), p. 8 [para. 69, footnote 1].

Keith, Norm and Wiggins, Ailsa Jane, Alcohol and Drugs in the Canadian Workplace: An Employer's Guide to the Law, Prevention and Management of Substance Abuse (2008), p. 240 [para. 72].

Mitchnick, Morton and Etherington, Brian, Labour Arbitration in Canada (2nd Ed. 2012), pp. 308, 309, topic 7:3625 [para. 28].

Snyder, Ronald M., Collective Agreement Arbitration in Canada (4th Ed. 2009), p. 51 [para. 78]; paras. 10.1, 10.96 [para. 23].

United States, Department of Transportation, Current Random Testing Rates (2013), online, http://www.dot.gov [para. 115].

Counsel:

Avocats:

Daniel Leger, David Mombourquette and Joël Michaud, for the appellant;

Neil Finkelstein, Steven Mason, Brandon Kain, Byron Shaw and William Goss, Q.C., for the respondent;

Barbara B. Johnston and April Kosten, for the interveners, the Construction Owners Association of Alberta, Construction Labour Relations - an Alberta Association and Enform;

Robert Dupont, Simon-Pierre Paquette and Johanne Cavé, for the interveners, the Canadian National Railway Company, the Canadian Pacific Railway Company and Via Rail Canada Inc;

Written submissions only by Ritu Khullar and John Carpenter, for the intervener, the Alberta Federation of Labour;

Ritu Khullar, for the intervener, the Communications, Energy and Paperworkers Union of Canada, Local 707;

Joshua S. Phillips and Karen Ensslen, for the intervener, the Canadian Civil Liberties Association;

Norman A. Keith, Ailsa Jane Wiggins and Anna Abbott, for the intervener, the Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters;

Peter A. Gall, Q.C., Andrea Zwack and Melanie Vipond, for the interveners, the Canadian Mining Association, the Mining Association of British Columbia, the Mining Association of Manitoba Inc., the Québec Mining Association, the Ontario Mining Association and the Saskatchewan Mining Association;

Andrew K. Lokan, Emily Lawrence and Christopher M. Dassios, for the intervener, the Power Workers' Union.

Solicitors of Record:

Pink, Larkin, Fredericton, New Brunswick, for the appellant;

McCarthy Tétrault, Toronto, Ontario, for the respondent;

Dentons Canada, Calgary, Alberta, for the interveners, the Construction Owners Association of Alberta, Construction Labour Relations - an Alberta Association and Enform;

Heenan Blaikie, Montreal, Quebec; Canadian National Railway Company, Montreal, Quebec, for the interveners, the Canadian National Railway Company, the Canadian Pacific Railway Company and Via Rail Canada Inc.;

Chivers Carpenter, Edmonton, Alberta, for the interveners, the Alberta Federation of Labour and the Communications, Energy and Paperworkers Union of Canada, Local 707;

Ursel Phillips Fellows Hopkinson, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Gowling Lafleur Henderson, Toronto, Ontario, for the intervener, the Alliance of Manufacturers & Exporters of Canada, carrying on business as Canadian Manufacturers & Exporters;

Heenan Blaikie, Vancouver, British Columbia, for the interveners, the Canadian Mining Association, the Mining Association of British Columbia, the Mining Association of Manitoba Inc., the Québec Mining Association, the Ontario Mining Association and the Saskatchewan Mining Association;

Paliare Roland Rosenberg Rothstein, Toronto, Ontario; Power Workers' Union, Toronto, Ontario, for the intervener, the Power Workers' Union.

This appeal was heard on December 7, 2012, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The decision of the court was delivered on June 14, 2013, in both official languages, including the following opinions:

Abella, J. (LeBel, Fish, Cromwell, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 55;

Rothstein and Moldaver, JJ., dissenting (McLachlin, C.J.C., concurring) - see paragraphs 56 to 118.