A broken safety rule alone wasn't enough to justify sending workers for testing
A gas line strike led an employer to order drug and alcohol testing, arguing the incident alone justified it. An appeal court disagreed.
In a decision released Aug. 26, 2026, Justice Keith Kilback, writing for a unanimous Saskatchewan Court of Appeal panel that also included Justices Neal Caldwell and Naheed Bardai, dismissed an appeal by SaskEnergy Incorporated, a natural gas utility that had challenged a labour arbitrator's ruling on post-incident drug and alcohol testing. The court upheld compensation ranging from $1,500 to $2,000 per worker.
Two pipeline incidents led to five testing orders
It started with two unrelated incidents. On July 17, 2019, a crew was trenching near Moose Jaw to connect a new gas line to a house. The crew lead had asked a colleague to double-check the gas line's location because its markers and those of a nearby telephone line looked unusually close together. A hydrovac operator could not find the gas line where the markers indicated, but no one told the trenching operator to stop digging. The trenching machine struck the line about 135 metres from the house.
SaskEnergy sent the crew lead, the trenching operator, the hydrovac operator and a welder for drug and alcohol testing that day. All four tested negative and none was disciplined.
The second incident happened on March 4, 2020, at White Bear First Nation, where a crew was installing gas service to three new homes. A backhoe operator, enlarging an excavation to make room for welding, struck an underground gas line that had unexpectedly shifted 18 inches out of position after a tracer wire came loose. SaskEnergy attributed the strike to operator error and sent him for testing. He also tested negative and was not disciplined.
Testing policy required more than a broken safety rule
SaskEnergy's drug and alcohol policy allowed post-incident testing only where testing itself was a sensible next step in the investigation, or where the employer had solid reason to think substance use might have played a role in what happened. The union grieved the testing on behalf of the five affected workers, arguing neither condition had been satisfied, and an arbitrator agreed.
Reviewing the first incident, he found SaskEnergy had not identified any behaviour that raised concern about impairment, hadn't asked the crew lead whether anyone acted unusually, and hadn't spoken to the other three workers at all before ordering the tests. He concluded the real purpose was disciplinary rather than investigative, finding SaskEnergy had required the testing "as a deterrent to ensure they would be more cognizant of safety rules."
The same reasoning applied to the second incident. The arbitrator found the backhoe operator had been sent for testing because of the equipment error itself, not because of any indication he might have been impaired, and that no one had asked whether his conduct had been out of the ordinary.
Appeal court agrees the testing was not justified
On judicial review, SaskEnergy tried to bolster its case with affidavits from two employees summarizing their recollection of witness testimony, since no transcript existed. A Court of King's Bench judge ruled the affidavits inadmissible, finding they offered only a selective account favourable to the employer with no assurance of accuracy. The Court of Appeal agreed, calling that kind of after-the-fact reconstruction unreliable for filling gaps in the record.
Separately, the judge found the arbitrator's award reasonable, and the Court of Appeal agreed. The panel rejected SaskEnergy's argument that the arbitrator had wrongly demanded proof employees were impaired, holding instead that a lack of evidence of unusual behaviour was, in the court's words, "relevant, but not determinative."
The Court of Appeal dismissed the appeal in full, leaving intact the arbitrator's original order: $1,500 in compensation to each of the four workers involved in the first incident and $2,000 to the worker involved in the second, with costs awarded to the union.
See SaskEnergy Incorporated v Unifor Local 649, 2026 SKCA 94
