Canadian Union of Postal Workers v. Canada Post Corporation

Canadian Union of Postal Workers v. Canada Post Corporation
Court (s) Database
Federal Court Decisions
Date
2016-02-26
Neutral citation
2016 FC 252
File numbers
T-2574-14
Decision Content
Date: 20160226
Docket: T-2574-14
Citation: 2016 FC 252
Ottawa, Ontario, February 26, 2016
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Applicant
and
CANADA POST CORPORATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the decision of Appeals Officer, Michael Wiwchar [Appeals Officer] of the Occupational Health and Safety Tribunal Canada dated November 27, 2014.
[2] The Appeals Officer’s decision rescinds a prior decision of a Health and Safety Officer finding the respondent, Canada Post Corporation [CPC], in contravention of the safety inspection requirements as set out in paragraph 125(1)(z.12) of the Canada Labour Code, RSC 1985, c L-2 [CLC].
[3] For the reasons that follow, the application is dismissed.
I. Background [4] The underlying facts are not in dispute. The following summary is taken from the Appeals Officer’s decision.
[5] The applicant, Canadian Union of Postal Workers [CUPW] is the certified bargaining agent for a group of employees that includes letter carriers across Canada. The applicant also represents employee members of Local Joint Health and Safety Committees [LJHSC]. The respondent, CPC has exclusive jurisdiction over the establishment and operation of postal services in Canada.
[6] In July, 2012 CUPW LJHSC representatives at the respondent’s Burlington, Ontario Depot [Burlington Depot] proposed, at a committee meeting, that inspections of the individual letter carrier routes be included as part of the Workplace Hazard Prevention Program [WHPP]. They argued the work place included public areas while a letter carrier is on delivery. However, in declining to follow that request, the respondent advised that, within the WHPP, delivery agents reported hazards on letter carrier routes to their supervisors.
[7] In August, 2012 the then Human Resources and Skills Development Canada [HRSDC] received a complaint from a CUPW LJHSC representative at the Burlington Depot stating that only part of the work place was being inspected, the physical building; whereas inspections should also occur on letter carrier routes. A Health and Safety Officer [HSO] attended the facility to investigate the complaint.
A. The HSO Decision [8] In investigating the complaint the HSO found four contraventions of Part II of the CLC and directed the respondent to terminate the contraventions and take steps to ensure that the contraventions do not continue or reoccur. This judicial review application pertains only to Contravention No. 1.
[9] In respect of Contravention No. 1, the HSO concludes that, pursuant to paragraph 125(1)(z.12) of the CLC, the respondent had failed to ensure the LJHSC inspects all or part of the work place on a monthly basis such that inspections of each part of the work place occurs at least once a year. The contravention finding notes that the LJHSC’s inspection activity is restricted to the building at the Burlington Depot.
[10] Paragraph 125(1)(z.12) of the CLC reads as follows:
125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
[…]
(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;
125. (1) Dans le cadre de l’obligation générale définie à l’article 124, l’employeur est tenu, en ce qui concerne tout lieu de travail placé sous son entière autorité ainsi que toute tâche accomplie par un employé dans un lieu de travail ne relevant pas de son autorité, dans la mesure où cette tâche, elle, en relève :
[…]
(z.12) de veiller à ce que le comité local ou le représentant inspecte chaque mois tout ou partie du lieu de travail, de façon que celui-ci soit inspecté au complet au moins une fois par année;
[11] The respondent brought an appeal under subsection 146(1) of the CLC of the direction issued by the HSO claiming that the HSO had erred in citing four contraventions of the CLC.
B. Relevant Submissions to the Appeals Officer [12] With respect to the contravention relevant to this application the issue before the Appeals Officer was the interpretation of “work place” as that term is used in paragraph 125(1)(z.12) of the CLC.
[13] The respondent, then appellant, argued that the HSO’s adoption of a broad interpretation of “work place” to include the routes and each point of call for letter carriers would create an absurd result. The respondent provided evidence to support this position.
[14] The respondent submitted that the Appeals Officer should take a purposive and contextual approach to interpreting the provision in its entirety, by considering paragraph 125(1)(z.12)’s place within subsection 125(1) of the CLC and within the statutory scheme. The respondent further argued that the interpretation of paragraph 125(1)(z.12) should be tempered by two factors: (1) the nature of the locations themselves; and (2) the ability of the employer to control the location or any hazardous activity at the location. The respondent submitted that it does not have control over the actual delivery locations nor the hazards that may arise in locations which the HSO decision had defined as a work place. The respondent argued that the Appeals Officer should consider the question of control as central when determining what constitutes a work place for the purposes of subsection 125(1).
[15] In contrast the applicant, then respondent, stressed that the objectives of Part II of the CLC and the jurisprudence supports a broad interpretation of the term work place and that many tribunal decisions recognize that a work place is not necessarily a single location, an interior location or a stationary location. Furthermore, the applicant noted that while the respondent may not control the work place locations, it does control the activity and thus the obligations under subsection 125(1) would apply. The applicant also stressed that the respondent’s interpretation of paragraph 125(1)(z.12) would be unduly restrictive and would defeat the purpose of the legislation.
II. Decision Under Review [16] In deciding the matter, the Appeals Officer varied the Direction of the HSO by rescinding Contravention Nos. 1, 2 and 4 and varying Contravention No. 3 (Canada Post Corp v Canadian Union of Postal Workers, 2014 OHSTC 22 [the Decision]). Again, only Contravention No. 1 is relevant to this application.
[17] The Appeals Officer framed the issue raised by Contravention No. 1 as being whether paragraph 125(1)(z.12) of the CLC applies to all places where letter carriers carry out their work, including individual points of call and the lines of route.
[18] To address the issue the Appeals Officer considered two questions: (1) the meaning of “work place” under the CLC and specifically whether or not a letter carrier’s line of route and points of call is a “work place” within the meaning of subsection 125(1) of the CLC; and (2) whether there is a requirement for employer control over a work place before the obligations to inspect embodied in paragraph 125(1)(z.12) are engaged.
[19] On the first issue, the Appeals Officer found that the objective of health and safety legislation is the prevention of accidents and injuries and that in keeping with section 12 of the Interpretation Act, RSC 1985, c I-21 “work place” is to be interpreted broadly. The Appeals Officer relied on Mowat Express v Communications, Energy and Paper Workers Union of Canada (QFL – CLC) June 1, 1993, Decision No 94-004, to conclude that a letter carrier’s “work place” include places outside the physical building that is the Burlington Depot and that “work place” extended to a letter carrier’s points of call and lines of route.
[20] Having agreed with the applicant’s position on the need to adopt a broad definition of “work place” the Appeals Officer considered the nature of the obligations imposed under paragraph 125(1)(z.12) of the CLC.
[21] After considering the language of subsection 125(1) the Appeals Officer at para 93 concludes that the obligations set out in that section of the CLC “centre around the notion of control”:
93. There is a clear distinction between situations where work places are controlled by the employer and those where they are not. It becomes clear from a plain reading of the obligations that: (i) some obligations apply to any employer, whether or not they control the work place, as long as they control the work activity, and (ii) other obligations, in order to be executed, require that the employer have control of the physical work place.
[22] The Appeals Officer then states at paras 95 to 96:
95. The wording at the beginning of subsection 125(1) indicates to me that the legislator drafted the section in this way in order to ensure that the employer be bound to the fullest extent possible by the obligations under the Code and its Regulations. Some paragraphs under subsection 125(1) refer to obligations which can only be carried out at a work place that is under the control of the employer. Conversely, other paragraphs confer an obligation on any employer whether or not they control the work place, as long as they control the work activity. One example of the latter is found at paragraph 125(1)(t) which states:
(t) ensure that the machinery, equipment and tools used by the employees in the course of their employment meet prescribed health, safety and ergonomic standards and are safe under all conditions of their intended use;
96. In my opinion, the obligation to inspect under (z.12) belongs to the former category because the purpose of the work place inspection obligation is to permit the identification of hazards and the opportunity to fix them or to have them fixed. Control over the work place is necessary to do so.
[23] In holding that paragraph 125(1)(z.12) does not apply to any place where a letter carrier is engaged in work outside the physical building the Appeals Officer, at para 100 of the Decision notes that the respondent “has many policies, programs and assessment tools that evaluate and promote the health and safety of their employees in all the elements of their work”.
III. Relevant Legislation [24] The relevant portions of the CLC and the Canada Occupational Health and Safety Regulations, SOR/86-304 [Regulations] are reproduced at Appendix “A” to this Judgment and Reasons.
IV. Applicant’s Submissions [25] The applicant seeks an order in the nature of certiorari, quashing and setting aside the Appeals Officer’s decision with respect to Contravention No. 1 and reinstating the HSO’s finding that the respondent is in contravention of paragraph 125(1)(z.12) of the CLC.
[26] The applicant submits the Appeals Officer’s interpretation of paragraph 125(1)(z.12) lacks justifiability and intelligibility as a result of internal inconsistencies in the reasons. The applicant argues that the decision falls outside the range of outcomes that are acceptable within the constraints of the language, scheme and purpose of the CLC and the decision-maker’s interpretation of the facts.
[27] The applicant submits that upon finding that: (1) letter carrier routes and points of call are part of the work place for purposes of subsection 125(1); (2) the respondent controls the work activities on letter carrier routes and points of call right down to how they walk the routes; and (3) the respondent can take steps to identify and resolve hazards on letter carrier routes and points of call, the Appeals Officer could not logically conclude that paragraph 125(1)(z.12) does not oblige CPC to conduct annual inspections of letter carrier routes and points of call. The Appeals Officer’s failure to reconcile his factual findings with his narrow definition of “control” resulted in a decision that lacked justification.
[28] The applicant argues that the purpose of health and safety legislation is to protect the health and safety of workers, and this is well-established in the jurisprudence. As a result any doubt or ambiguity arising from the language of the CLC is to be resolved in a manner that favours the protection of employees. The applicant then notes that the Appeals Officer properly interpreted the term “work place” in subsections 122(1) and 125(1) of the CLC to include letter carrier routes and points of call.
[29] The applicant then addresses the Appeals Officer’s consideration of subsection 125(1) of the CLC. The applicant argues that on a plain reading of the subsection, the duties listed in subsection 125(1) apply both where an employer controls the work place and where the employer does not control the work place but does control the work activity.
[30] Relying on the Ontario Court of Appeal’s decision in R v Huggins, 2010 ONCA 746 at para 17, 326 DLR (4th) 720, the applicant submits that a decision-maker should not limit a statute’s application by reason of a belief that the application is impractical, as the practicality of application of the statute belongs to the legislature not an administrative decision-maker or the Courts. Furthermore, the applicant argues that the limited exception of cases where the application of a provision would result in absurdity does not apply here as one cannot conclude that requiring employers to adhere to all obligations in subsection 125(1), to the extent of their control over a work activity, would lead to ridiculous or inequitable consequences that are incompatible with the purposes of the legislation (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 27).
[31] The applicant argues further, or in the alternative, that the Appeals Officer unreasonably adopted an unduly restrictive interpretation of “control”. The applicant submits that determining “control” was limited to circumstances where an employer has exclusive access and/or a right to alter the physical work place in combination with the Appeals Officer’s determination that paragraph 125(1)(z.12) of the CLC applies only where an employer controls a work place absolves the respondent of its obligation to inspect work places to identify and take steps to fix hazards. The applicant submits the respondent’s substantial functional control over letter carrier routes and points of call amounts to a level of control over the work place sufficient to attract the obligation under subsection 125(1) even if the Appeals Officer has not committed a reviewable error in holding that the obligation applies only where an employer controls a work place.
[32] Finally, the applicant argues that an interpretation of subsection 125(1) that relieves federal employers from identifying and resolving safety hazards in a work place where they do not have exclusive access is contrary to the scheme of the CLC. The applicant argues that subsection 125(1) seeks to enhance not derogate from the general duty of employers under section 124 of the CLC to ensure safety in the work place.
[33] The applicant also takes issue with the respondent’s use of hypothetical examples relating to other federally regulated work places and evidence relating to CPC employees who take taxis to their routes, and eat meals on route. The applicant argues that there is insufficient evidence before the Court in relation to these examples to justify their use in interpreting the CLC and as such the only focus should be the Burlington routes and points of call.
V. Respondent’s Submissions [34] The respondent submits that the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) of the CLC fell within the range of possible acceptable outcomes and was supported by the evidence before him and therefore was reasonable.
[35] At the outset of oral submissions the respondent noted that the applicant’s position that Part II of the CLC is a public welfare statute and thus generally requires a broad and purposive interpretation was not in dispute. However, relying on Blue Mountain Resorts Ltd v Bok, 2013 ONCA 75 at para 26, 114 OR (3d) 321 [Blue Mountain Resorts] the respondent submits that a broad and generous interpretation of the CLC does not necessitate a limitless interpretation.
[36] The respondent advanced the view that subsection 125(1) of the CLC requires one to first determine if the place in question is a work place. However, unlike the applicant, the respondent argues that in assessing the duties and obligations imposed by subsection 125(1) the determination that a location is a “work place” does not end the inquiry. Rather the respondent argues that the obligations imposed by subsection 125(1), will differ depending upon whether or not the employer controls the work place or alternatively only controls the work activity.
[37] The respondent also takes issue with the applicant’s position that in interpreting subsection 125(1) the Appeals Officer’s focus should have only been on the letter carrier routes at the Burlington location. The respondent argues that an inquiry into the interpretation of subsection 125(1) requires assessing not only where the employees go but also how they get there.
[38] The respondent then sets out the evidence it put before the Appeals Officer related to CPC employees at the Burlington Depot and to CPC’s employees generally for the purpose of demonstrating the ramifications of the finding that paragraph 125(1)(z.12) applies in the manner the applicant advanced. For example, the respondent submits that the applicant’s interpretation would include an obligation to inspect public transportation used to transport a letter carrier to the beginning of a route because many letter carriers are transported to their first point of call by public transportation or taxis.
[39] The respondent, again relying on Blue Mountain Resorts at para 38, submits that it was also appropriate for the Appeals Officer to consider hypothetical circumstances in assessing the impact of the applicant’s proposed interpretation of paragraph 125(1)(z.12). The respondent argues that these hypothetical circumstances involving Parks Canada Agency, the National Research Council and the Royal Canadian Mounted Police demonstrate the potential absurdity in interpreting paragraph 125(1)(z.12) as requiring federally regulated employers to conduct inspections of work places not under control of the employer.
[40] The respondent argues that the Appeals Officer reasonably recognized the necessity of the concept of control in respect to the application of paragraph 125(1)(z.12) of the CLC by agreeing with the respondent’s position that CPC could not enforce the requirement to ensure all permanent and temporary buildings and structures meet the prescribed standards with respect to structures it neither owns nor has a right to alter. In turning his mind to the possible absurdities arising from a finding that a work place is anywhere a person performs work, the Appeals Officer’s approach of not adopting a narrow interpretation of work place as the Ontario Court of Appeal did in Blue Mountain Resorts but rather focusing on the element of employer control led to a similarly reasonable and logical conclusion.
[41] The respondent also argues that the Appeals Officer did not lose sight of the employer’s obligation to ensure the protection of the health and safety of employees and considered the evidence before him to the effect that the respondent had many policies and programs in place to deal with outdoor and delivery related hazards, noting particularly the WHPP. The respondent stressed that the Appeals Officer’s reference at para 100 of the Decision to the WHPP was an implicit finding that CPC is effectively working to comply with Part XIX of the Regulations, and that compliance assuaged the Appeals Officer’s concerns of potential consequences relating to hazard identification that could arise from the interpretation adopted on paragraph 125(1)(z.12) of the CLC.
VI. Issues [42] The sole issue arising in this application is whether or not the Appeals Officer’s interpretation of subsection 125(1) and consequently paragraph 125(1)(z.12) of the CLC was reasonable. Specifically the Court asks whether the Appeals Officer’s determination that the obligations under paragraph 125(1)(z.12) only apply to work places where the employer exercises control falls within the range of possible, acceptable outcomes defensible in respect of the facts and law.
VII. Standard of Review [43] The parties agree that the reasonableness standard of review applies to the Appeals Officer’s decision, inclusive of the interpretation and application of paragraph 125(1)(z.12) of the CLC, as the Appeals Officer was interpreting his home statute, an area in which he has considerable expertise (Canada Post v Canadian Union of Postal Workers, 2011 FCA 24 at paras 17-18, 28, 330 DLR (4th) 729).
[44] In concluding that the decision is to be reviewed on a reasonableness standard, the Court is mindful of the Federal Court of Appeal’s decision in First Nations Child and Family Caring Society of Canada v Canada (Attorney General), 2013 FCA 75 at para 14, 444 NR 120. In that decision, the Court of Appeal establishes that in the context of reviewing a decision that involves the interpretation of a statute the range of possible and acceptable outcomes can be relatively narrow since “The Tribunal’s decision primarily involves statutory interpretation – a matter constrained by the text, context and purpose of the statute.”
VIII. Analysis A. Statutory Interpretation [45] In reviewing a decision interpreting a statutory provision it is helpful to first review the core underlying principle of statutory interpretation as identified in Supreme Court of Canada jurisprudence. In Bell ExpressVU Limited Partnership v Rex, [2002] 2 SCR 559 [Bell ExpressVU], a unanimous decision of the Court, Justice Iacobucci states the following at paras 26 and 27:
26 In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings [sources omitted]. I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.
27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute [emphasis added]: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, ‘words, like people, take their colour from their surroundings’. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive [emphasis added]. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”.
[46] In Bell ExpressVU at paras 29 to 30, Justice Iacuobucci then addressed the issue of ambiguity in a statutory provision:
29 What, then, in law is an ambiguity? To answer, an ambiguity must be “real” (Marcotte, supra, at p. 115). The words of the provision must be “reasonably capable of more than one meaning” (Westminster Bank Ltd. v. Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.
30 For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one's starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra, at pp. 4-5).
[47] Furthermore in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 27, Justice Iacobucci, again writing for a unanimous Supreme Court of Canada, addresses the principle of statutory interpretation avoiding absurd consequences:
27 It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).
B. Reasonableness of the Decision [48] Based on these principles of statutory interpretation I will now consider the reasonableness of the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) within the broader context of the CLC.
[49] As noted above, the applicant argues that it was unreasonable for the Appeals Officer to conclude that the obligations set out in subsection 125(1) do not apply equally to employers who control the work place or work activity within a work place. I respectfully disagree.
[50] In interpreting subsection 125(1) of the CLC the Appeals Officer was required to consider the words of subsection 125(1) in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the CLC (Bell ExpressVU paras 26 and 27).
[51] In this case the Appeals Officer closely examined subsection 125(1) of the CLC and, after concluding that for CPC letter carriers’ work place included places outside the physical building controlled by the employer and included points of call and lines of route, he then considered the specific obligations enumerated in subsection 125(1) of the CLC. He notes the subsection draws a clear distinction between work places that are controlled by the employer and those that are not. He further concludes, based on a plain reading of the subsection that not all obligations apply where the employer does not control the work place. To demonstrate this he notes the obligation set out in paragraph 125(1)(a), requiring that all permanent and temporary buildings and structures must meet prescribed standards and concludes that this is an obligation that an employer can only satisfy where the employer controls the physical work place and can thus alter structures. He contrasts this with the obligation set out in paragraph 125(1)(t), to ensure the safety of all machinery, equipment and tools used by the employees in the course of their employment, noting that this obligation can be respected both where the employer controls the work place and where the employer only controls the work activity. It is on this basis that the Appeals Officer concludes that the inspection obligation at paragraph 125(1)(z.12) only arises where the employer controls the work place, as the purpose of the 125(1)(z.12) inspection is the identification and opportunity to fix hazards. This, the Appeal Officer concludes requires control of the work place.
[52] The applicant argues that this interpretation fails to reflect the need for a broad generous interpretation of the CLC and that the mere fact that an interpretation might be viewed as impractical by a decision-maker is not sufficient to allow the decision-maker to limit its application. In this case I am of the view that the Appeals Officer has adopted a reasonable interpretation of subsection 125(1) and paragraph 125(1)(z.12), based on a harmonious reading of the words in their context. The Appeals Officer’s determination that the employer can only satisfy certain obligations imposed by the subsection when in control of the work place is not driven by an impracticality assessment but rather a determination that the underlying purpose of paragraph 125(1)(z.12) can only be achieved where the employer is in a position to both identify and fix hazards. As noted by the Ontario Court of Appeal in Blue Mountain Resorts at paras 26 and 27 a generous interpretation of public welfare statues cannot justify extending the reach of legislation beyond the intent of the legislator:
26. This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions however.
27. One of the problems with what is otherwise an understandable approach to the interpretation of public welfare legislation is that broad language, taken at face value, can sometimes lead to the adoption of overly broad definitions. This can extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation.
[53] In the context of this review I need not determine whether or not the Appeals Officer was correct in his interpretation but rather whether or not the interpretation was reasonable keeping in mind that the range of reasonable acceptable outcomes may be relatively narrow. In this case I am satisfied that the Appeals Officer’s interpretation was reasonable.
[54] Similarly, I cannot agree with the applicant’s position that the Appeals Officer adopted an unreasonable interpretation of “control” in considering subsection 125(1) of the CLC. As the Appeals Officer notes the parties did not dispute the fact that the employer does not exercise physical control over points of call or lines of route. Similarly, there was no dispute with respect to the fact that many points of call are private property. As such it was not unreasonable for the Appeals Officer to conclude that an employer did not control the work place and in turn could not effectively carry out an inspection and accomplish the underlying purpose of paragraph 125(1)(z.12). The hypothetical examples from the record which the respondent provided above supported this interpretation (Blue Mountain Resorts at para 38).
[55] Further, I am of the opinion that the Appeals Officer’s finding that the respondent exercises substantial control over the work activity is neither internally inconsistent with the decision, nor does it undermine the reasonableness of the decision. The Appeals Officer identifies that subsection 125(1) draws a clear distinction between control over the work place and control over the work activity. He found that distinction to be significant and meaningful in interpreting subsection 125(1). Having concluded that the subsection distinguishes between work place control and work activity control, and having determined that work place control was the determinative factor in respect of the obligations imposed by paragraph 125(1)(z.12) there was no need, in my opinion, for the Appeals Officer to address the question of employer control over work activity.
[56] Of course to be reasonable the interpretation must also not run contrary to or defeat the statutory objective of the CLC, the protection of the health and safety of employees. The applicant submits this is exactly what the Decision does. However, I am satisfied that the Decision reflects a contextual consideration of subsection 125(1) within the scheme of the CLC that both recognizes and promotes the underlying principle of the CLC. Section 124 imposes a general duty on every employer to ensure the health and safety at work of every person employed by the employer is protected. Subsection 125(1) of the CLC supplements rather than limits that general duty (Laroche v Canada (Attorney General), 2011 FC 1454 at para 8, 401 FTR 287). An interpretation limiting any of the obligations set out at subsection 125(1) therefore does not limit the broader duty articulated at section 124, nor necessarily undermine or contravene the purpose of the Code. Nor, does the Decision with respect to paragraph 125(1)(z.12) affect Part XIX of the Regulations relating to the employer’s obligations with respect to the creation and implementation of a hazard prevention program.
[57] I recognize that the Appeals Officer did not did not specifically refer to section 124 of the CLC or to Part XIX of the Regulations in the analysis but the failure to do so does not lead me to conclude that the provision was not considered. As Justice LeBel held for a unanimous Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness), [2013] 2 SCR 559 at para 57, citing Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, [2011] 3 SCR 654: “a decision maker’s decision on the merits may imply a particular interpretation of the statutory provision at issue even if the decision maker has not expressed an opinion on that provision’s meaning”. I am satisfied that the role of section 124 of the CLC and Part XIX of the Regulations was implicit in the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12). This is reflected in the finding at paragraph 100 of the Decision:
100 In any event, the evidence has demonstrated that Canada Post has many policies, programs and assessment tools that evaluate and promote the health and safety of their employees in all elements of their work. Notably, the WHPP developed by Canada Post is exemplary in its protocol for identifying and reporting hazards that are encountered at the points of call. In my opinion the program is an excellent example of how the Code and its Regulations are implemented to protect the health and safety of employees performing all kinds of activities in all kinds of work places [emphasis added].
IX. Conclusion [58] In my opinion the Decision reflects that preservation of the broad obligations of the CLC was at the forefront of the Appeals Officer’s interpretation of the CLC. He implicitly recognized that adopting the respondent’s restrictive interpretation of the term “work place” could have the effect of diluting the remedial effects of the CLC. The Appeals Officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control. In my view the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.
[59] I am satisfied that the Appeals Officer decision is justified, transparent and intelligible, and falls within a range of possible acceptable outcomes defensible in respect of the facts and law (Dunsmuir v New Brunswick, [2008] 1 SCR 190 at para 47). The application is therefore dismissed with costs to the respondent.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application is dismissed; and
2. Costs to the respondent.
"Patrick Gleeson"
Judge
Appendix “A”
Canada Labour Code, RSC 1985, c L-2
122. (1) In this Part,
“work place” means any place where an employee is engaged in work for the employee’s employer;
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.
125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
(a) ensure that all permanent and temporary buildings and structures meet the prescribed standards;
(b) install guards, guard-rails, barricades and fences in accordance with prescribed standards;
(c) investigate, record and report in the manner and to the authorities as prescribed all accidents, occupational diseases and other hazardous occurrences known to the employer;
(d) post in a conspicuous place accessible to every employee
(i) a copy of this Part,
(ii) a statement of the employer’s general policy concerning the health and safety at work of employees, and
(iii) any other printed material related to health and safety that is prescribed or that may be directed by the Minister;
(e) make readily available to employees for examination, in printed or electronic form, a copy of the regulations made under this Part that apply to the work place;
(f) if a copy of the regulations is made available in electronic form, provide appropriate training to employees to enable them to have access to the regulations and, on the request of an employee, make a printed copy of the regulations available;
(g) keep and maintain in prescribed form and manner prescribed health and safety records;
(h) provide prescribed first-aid facilities and health services;
(i) provide prescribed sanitary and personal facilities;
(j) provide, in accordance with prescribed standards, potable water;
(k) ensure that the vehicles and mobile equipment used by the employees in the course of their employment meet prescribed standards;
(l) provide every person granted access to the work place by the employer with prescribed safety materials, equipment, devices and clothing;
(m) ensure that the use, operation and maintenance of the following are in accordance with prescribed standards:
(i) boilers and pressure vessels,
(ii) escalators, elevators and other devices for moving persons or freight,
(iii) all equipment for the generation, distribution or use of electricity,
(iv) gas or oil burning equipment or other heat generating equipment, and
(v) heating, ventilation and air-conditioning systems;
(n)