Canada Post Corporation v. Canada (Attorney General)

Canada Post Corporation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2007-12-21
Neutral citation
2007 FC 1362
File numbers
T-1428-06
Notes
Digest
Decision Content
Date: 20071221
Docket: T-1428-06
Citation: 2007 FC 1362
Ottawa, Ontario, December 21, 2007
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
CANADA POST CORPORATION
Applicant
and
CAROLYN POLLARD and
ATTORNEY-GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] Prior to 2004, it was not uncommon in rural or semi-rural areas to see vehicles delivering mail while driving on the wrong, or left, side of the road. This practice allowed the driver to reach through the driver-side window in order to pick-up or deposit mail in a rural mailbox (RMB). In June of 2004, Canada Post Corporation (Canada Post) advised its delivery personnel that they were no longer permitted to drive on the left shoulder of roadways to deliver mail because this violated highway traffic laws. Delivery routes were restructured in order to ensure that a Rural and Suburban Mail Carrier (RSMC) was not required to deliver mail on the left shoulder of a roadway.
[2] This was the genesis of this application for judicial review.
[3] In November of 2004, Carolyn Pollard was employed by Canada Post as a RSMC in Brampton, Ontario. After her delivery route was restructured and she was instructed to drive on the right side of the road and deliver mail through the front passenger-side window of her vehicle, Ms. Pollard, without attempting to perform her duties, exercised her right under Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 (Code), to refuse dangerous work. She explained her refusal in the following way:
The main safety concern is that the route is absolutely impossible to deliver from the driver’s side across my flyers, my parcels and my tray of mail out the window and open the door to the mailbox put the mail in and lift the flag. I cannot get my legs even out from under the steering wheel to lift myself up and over mail. Also to undo my seatbelt I am at risk. I deliver to 740 homes by one day I would be in pain never mind every day. Also in the window slipping on the mail when it gets wet changing it from back to front and when the winter you cannot even get close to the boxes.
[4] A Health and Safety Officer (HSO) designated under the Code investigated Ms. Pollard's refusal to work and determined, pursuant to subsection 129(4) of the Code, that no danger existed for Ms. Pollard. The HSO did, however, direct Canada Post to complete a hazard assessment of the work of all RSMCs who worked alone under the authority of the Brampton Hale Road Postal Station in order to determine any known or foreseeable safety hazards the RSMCs might be exposed to while delivering or picking-up mail. Canada Post was also instructed to develop safe work procedures and to train relevant employees in those procedures.
[5] Ms. Pollard appealed the finding of no danger to the Canada Appeals Office on Occupational Health and Safety (CAOOHS) and a hearing proceeded before an appeals officer. The appeals officer allowed the appeal and rescinded the decision of the HSO. Specifically, the appeals officer found that a danger existed for Ms. Pollard in connection with the in-vehicle RMB deliveries and pick-ups made through the front passenger-side window of her delivery vehicle in the following two circumstances:
First, C. Pollard has to stretch and twist her body to reach from her driver’s seat through the front passenger side window of her vehicle to deliver mail to approximately 700 RMBs stops per day, 5 days a week, without having received instruction and training in an ergonomic work procedure appropriate to her physical condition, the conditions of her vehicle and the conditions of the different delivery and pick-up work places (the mail boxes’ positions). In addition, several of the RMBs along her route are not in compliance with [Canada Post] positioning and placement specifications, such that the distance to deliver mail to the RMBs is greater.
Secondly, a danger exists when C. Pollard has to make rural mail delivery stops where the shoulders of the road are too narrow or non-existent due to curbs, such that she cannot pull her vehicle off the traveled part of the roadway. Also, a danger exists because her vehicle is not equipped with warning devices to warn other drivers that her mail vehicle is stopped on the shoulder of the roadway for mail delivery. As a result, she is exposed, in fair and inclement weather, to the hazard of being struck by other cars and heavy trucks on roadways where speed can vary between 40 and 80 kilometres per hour.
[6] In consequence, the appeals officer issued a direction to Canada Post in the following terms:
Therefore, you are HEREBY DIRECTED, pursuant to subparagraph 145(2)(a)(i) of the Canada Labour Code, Part II, to take appropriate and immediate measures to correct these two hazards that constitute a danger.
Furthermore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to cease RSMC in-vehicle RMB delivery activity carried out by C. Pollard until such time as you have complied with the present direction, which does not prevent you from taking all measures necessary for the implementation of the direction.
[7] Canada Post brings this application for judicial review of that decision and direction. The Attorney General of Canada did not participate in this proceeding.
The issues to be determined
[8] In their memoranda of argument, the parties raised a number of issues. In my view, four substantive issues must be resolved. They are:
1. Did the appeals officer err by giving no weight to a settlement agreement signed by Ms. Pollard in which she agreed to withdraw her appeal to the CAOOHS?
2. Did the appeals officer exceed his jurisdiction by considering issues of traffic safety?
3. Did the appeals officer breach the duty of fairness that he owed to Canada Post by failing to provide it with an opportunity to adduce evidence and make submissions about two issues raised in his decision?
4. Did the appeals officer err by finding that the ergonomic hazards faced by Ms. Pollard constituted a danger under Part II of the Code?
Summary of the Court's conclusions
[9] In these reasons, I find that:
1. The appeals officer did not err by giving no weight to the settlement agreement signed by Ms. Pollard in which she agreed to withdraw her appeal to the CAOOHS.
2. The appeals officer did not exceed his jurisdiction by considering traffic safety issues.
3. The appeals officer breached the duty of fairness that he owed to Canada Post in one respect only. The officer failed to provide Canada Post with an opportunity to adduce evidence and make submissions about issues of traffic safety.
4. The appeals officer did not err by finding that the ergonomic hazards faced by Ms. Pollard constituted a danger under Part II of the Code.
5. No costs are awarded to any participating party because success was divided on the application.
[10] Throughout these reasons, reference is made to provisions of the Code. Various relevant provisions are set out in Schedule A to these reasons.
Standard of review
[11] The standard of review applicable to a substantive decision of an administrative tribunal is determined by resort to the pragmatic and functional analysis, which considers the presence of a privative clause, the purpose of the governing legislation, the nature of the question under review, and the expertise of the decision-maker. The Supreme Court of Canada has cautioned that “reviewing courts must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of review should be adopted when there are clearly defined questions that engage different concerns under the pragmatic and functional approach.” Given that the presence or absence of a privative clause is likely to be the same for all aspects of an administrative decision, the possibility of more than one standard of review will “largely depend on whether there exist questions of different natures and whether those questions engage the decision maker’s expertise and the legislative objective in different ways." See: Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591 at paragraph 19.
[12] I now turn to the elements of the pragmatic and functional analysis.
a. The existence of a privative clause
[13] The Code contains two privative causes in respect of appeals officers. They are contained in sections 146.3 and 146.4, which provide as follows:
146.3 An appeals officer’s decision is final and shall not be questioned or reviewed in any court.
146.4 No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an appeals officer in any proceeding under this Part.
146.3 Les décisions de l’agent d’appel sont définitives et non susceptibles de recours judiciaires.
146.4 Il n’est admis aucun recours ou décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action de l’agent d’appel exercée dans le cadre de la présente partie.
[14] These provisions have been described as "strong privative causes", and they reflect Parliament’s intent that great deference be paid to the decisions of appeal officers. See: Martin v. Canada (Attorney General), [2005] 4 F.C.R. 637 at paragraph 16 (C.A.) (Martin C.A.).
b. Purpose of the governing legislation
[15] The purpose of Part II of the Code is set out in section 122.1 of the Code: to prevent accidents and injuries in the workplace. The provisions of the Code relating to appeals officers give the officers broad investigative powers to determine whether a situation of danger exists and, if required, give appeals officers extensive remedial powers. See: section 145.1, subsection 146.1(1), and section 146.2 of the Code.
[16] As the purpose of the legislation is to protect employees, greater deference should be shown to decisions of appeals officers. See: Martin v. Canada (Attorney General), [2004] 1 F.C.R. 625 at paragraph 36 (T.D.) (Martin F.C.).
c. The nature of the question
[17] Three questions put in issue by Canada Post attract the application of the pragmatic and functional analysis.
[18] The first question puts in issue the officer's decision to give no weight to the settlement agreement signed by Ms. Pollard. Canada Post argues that this issue required the officer to interpret the settlement agreement, which raises a question of law. On the other hand, Ms. Pollard argues that the question before the officer was whether she properly rescinded the settlement agreement. I agree that the appeals officer was required to hear and consider evidence concerning the agreement, its purported rescission, and the conduct of the parties. Thus, the question of whether, notwithstanding the settlement agreement, the appeal should have proceeded before the appeals officer is one of mixed fact and law.
[19] The second question of whether the appeals officer had jurisdiction to address the traffic safety issues is said by Canada Post to be a jurisdictional issue. However, such characterization is not, in my view, helpful. What is in issue is the appeals officer's finding that Ms. Pollard did raise traffic safety concerns as part of her work refusal. That finding is one of fact.
[20] Finally, the question of the existence of a danger under the Code is a question of mixed fact and law.
d. The expertise of the decision-maker
[21] The question of the effect of the settlement agreement has a legal component and, in my view, an appeals officer does not have greater expertise than the Court when applying general principles of contract law. To the extent that the officer was required to consider evidence about the rescission of the agreement, evidence of this sort strays from the core competence of an appeals officer, whose expertise relates primarily to workplace health and safety.
[22] The question of whether the traffic safety issues were properly before the appeals officer is intensely fact driven. Appeals officers are required to consider work refusals and to administer the health and safety provisions of the Code. They are granted broad investigative and remedial powers. An appeal before an appeals officer is de novo. See: Martin C.A., cited above, at paragraph 28. On this basis, I find that an appeals officer’s expertise is greater than that of the Court when determining what hazards or dangers are put in issue when an employee refuses to work.
[23] The determination of whether circumstances in a workplace constitute a danger as defined in the Code engages the expertise of appeals officers. They are able to assess firsthand the workplace and their expertise is superior to that of the Court on questions of this kind.
e. Conclusion with respect to the standard of review
[24] The question of the effect of the settlement agreement is one of mixed fact and law, and lies outside of the core competence of an appeals officer. Weighing those factors against the existence of the privative clauses and the purpose of the Code, I find that this issue should be reviewed on the standard of reasonableness.
[25] The appeals officer's decisions with respect to whether the issue of traffic safety was properly before him and whether a danger existed under Part II of the Code were fact-based, and they fell within the officer's area of expertise. When this is considered together with the privative clauses present and the purpose of the legislation, I believe that these findings should be reviewed on the standard of patent unreasonableness.
[26] Finally, no pragmatic and functional analysis is required with respect to the issue of the alleged breaches of procedural fairness. It is for the Court to determine whether, in the specific circumstances of this case, the appeals officer complied with the requirements of fairness. No deference is owed to the appeals officer on this issue.
[27] Having identified the appropriate standards of review to be applied to the decision of the appeals officer, I turn to the specific errors asserted by Canada Post.
Did the appeals officer err by giving no weight to the settlement agreement signed by Ms. Pollard in which she agreed to withdraw her appeal to the CAOOHS?
[28] I have chosen to deal with this issue first because, logically, it is capable of being dispositive of the entire application. I note, however, that neither party strenuously pursued this issue in significant detail in their oral or written submissions.
[29] The parties agree that, prior to the hearing before the appeals officer, Ms. Pollard, her union, and Canada Post signed a settlement agreement in which she agreed to withdraw her appeal from the decision of the HSO. Canada Post raised the issue of the settlement agreement at the appeal hearing, advising at the outset that it would be pursuing the issue in the course of the hearing but that it was "content with that [issue] going through evidence."
[30] The appeals officer gave no weight to the agreement because, in his opinion, "the agreement was inadequate for [Canada Post] to meet its duties under Part II and it is therefore to be ignored."
[31] It is, I believe, well-settled law that a tribunal is not bound to accept the terms of a settlement negotiated between the parties, particularly where the tribunal's constituting legislation imposes upon it a broad statutory mandate. See, for example, Re Consumers' Distributing Co. Ltd. and Ontario Human Rights Commission et al. (1987), 36 D.L.R. (4th) 589 (Ont. Div. Ct.).
[32] In this case, the Code grants a broad mandate to CAOOHS to further the purpose of the prevention of accidents and injuries in the workplace. The settlement agreement appears to be confined to the redress of Ms. Pollard's various grievances. While the agreement does refer to training to be provided to Ms.Pollard, it does not address or resolve the broader safety issues raised by Ms. Pollard in her appeal from the HSO’s decision. That fact distinguishes the circumstances of this case from those in Walton and Canada (Correctional Service), [2005] C.L.C.A.O.D. No. 7 (QL), relied upon by Canada Post.
[33] In my view, because the settlement agreement did not resolve the broader safety issues, the appeals officer's decision that the settlement agreement did not meet all of Canada Post's duties under Part II of the Code withstands a somewhat probing examination. It was not, therefore, unreasonable.
[34] In the event that I erred in determining the proper standard of review to be applied to this question and the proper standard of review is patent unreasonableness, because the decision withstands scrutiny on the reasonableness standard, it follows that it also withstands scrutiny on the more deferential standard of patent unreasonableness.
[35] Finally, and in any event, the evidence before the appeals officer included a letter dated September 20, 2005, from the CAOOHS to Ms. Pollard. This letter acknowledged receipt of the settlement agreement, but noted that Ms. Pollard’s right to appeal the decision of the HSO was a personal right and that the settlement agreement expressed what the CAOOHS characterized to be "an, as yet, unfulfilled intent" to withdraw the appeal. The CAOOHS therefore advised that it required Ms. Pollard to supply her written confirmation of withdrawal of the appeal before it would proceed to close the file. Ms. Pollard replied by letter dated September 26, 2005, advising that she felt that she was coerced into signing the agreement and that she wanted to proceed with the appeal.
[36] When questioned at the hearing by counsel for Canada Post about the settlement agreement, Ms. Pollard testified that the settlement "was cancelled" and that she had "a letter from Mr. Gilbert [of Canada Post] stating that the memorandum was cancelled." Ms. Pollard agreed that this letter was sent by Canada Post after she had notified the CAOOHS that she did not intend to be bound by the settlement agreement. No contrary evidence on this point was adduced before the appeals officer by Canada Post.
[37] This uncontradicted evidence that the settlement agreement was cancelled or rescinded supports the reasonableness of the officer's conclusion not to give any weight to the agreement.
Did the appeals officer exceed his jurisdiction by considering traffic hazards?
[38] As set out above at paragraph 5 of these reasons, the appeals officer found that a danger within the meaning of Part II of the Code existed for Ms. Pollard in respect of both the ergonomic and traffic hazards related to her work. Canada Post says that Ms. Pollard's refusal to work, the HSO’s investigation, and the appeal of the HSO’s decision were limited to Ms. Pollard's refusal to deliver mail to RMBs due to ergonomic issues. It follows, Canada Post argues, that the appeals officer's decision that he had jurisdiction to consider traffic safety issues was patently unreasonable and that he exceeded his jurisdiction.
[39] The appeals officer's reasons on this point begin at paragraph 79 of his decision. In brief, the officer found, as a fact, that the refusal to work was not related only to the ergonomic hazards associated with rural mail delivery and that, in any event, he had jurisdiction to consider the issue of traffic safety even if it was not raised in Ms. Pollard’s refusal to work complaint.
[40] In order to find that traffic safety concerns were part of the basis of Ms. Pollard’s refusal to work, the appeals officer relied upon:
(i) Exhibit D-6, which included Ms. Pollard's letter of October 6, 2004, to the HSO that enclosed correspondence between Ms. Pollard and Canada Post. The correspondence confirmed that Ms. Pollard's concerns dealt with both ergonomic and highway traffic hazards.
(ii) Exhibit D-5, which included the HSO’s notes of a meeting held on November 25, 2004, to investigate Ms. Pollard's refusal to work. The notes confirmed that both ergonomic and traffic hazards were discussed.
(iii) Exhibit D-5, which included Ms. Pollard’s refusal to work registration form, quoted above at paragraph 3 of these reasons. This form recorded the following concern: “[A]lso to undo my seatbelt I am at risk.”
(iv) Exhibit D-4, which included the HSO’s investigative report, decision, and direction to Canada Post. The decision recorded the HSO’s finding that there was no evidence regarding formal safe work procedures on issues such as signage on delivery vehicles, the use of four-way lights, and whether a RSMC should get out of the delivery vehicle while stopped on the shoulder of the road. The direction issued by the HSO required Canada Post to complete a hazard assessment in respect of both health and safety hazards.
(v) Exhibit D-1, which included the notice of appeal from the HSO’s decision. In the notice of appeal, Ms. Pollard stated "[i]f I am involved in an accident while not being in the correct seated safety belted position this could result in serious bodily injuries or death … ."
[41] From this evidence, the appeals officer concluded that Ms. Pollard's refusal to work related to traffic safety concerns (as well as ergonomic concerns) and that the HSO ought to have been aware that Ms. Pollard's health and safety concerns related to both ergonomic and traffic-related hazards.
[42] A patently unreasonable decision is one based upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the decision-maker. See: paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7. As Mr. Justice Binnie, writing for the majority, explained in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 164:
[L]ike the correctness standard, the patently unreasonable standard admits only one answer. A correctness approach means that there is only one proper answer. A patently unreasonable one that means that there could have been many appropriate answers, but not the one reached by the decision maker.
[43] Applying that standard of review to the appeals officer's decision, I have verified that the evidence was as stated by the officer. I find that such evidence supported the officer’s conclusions that traffic safety issues were identified by Ms. Pollard and that the HSO ought to have been aware of this. In the result, the officer's conclusions were open to him and they cannot be said to be patently unreasonable.
[44] It is not, therefore, necessary for me to consider the appeals officer's alternate finding that he could have dealt with the traffic safety issues even if they were not raised in Ms. Pollard’s refusal to work complaint.
Did the appeals officer breach the duty of fairness by failing to provide Canada Post with an opportunity to deal with two issues raised in his decision?
[45] Canada Post asserts that the appeals officer breached the duty of fairness in two respects:
(a) Canada Post argues that the officer erred by failing to provide it with an opportunity to make submissions and adduce evidence in respect of the officer’s reliance upon the provisions Part XIV (Materials Handling) of the Canada Occupational Health and Safety Regulations, SOR/86-304 (Regulations). Canada Post says that the relevant provision was not raised by the parties or the appeals officer during the hearing.
(b) Canada Post argues that the officer erred by failing to provide it with an opportunity to make submissions and adduce evidence in respect of traffic safety issues, which were found to form part of the officer’s inquiry. Canada Post says that the appeals officer specifically advised that it would be afforded such an opportunity.
[46] The Supreme Court of Canada considered the nature of the participatory rights required by the duty of fairness in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. At paragraph 30 of its reasons, the majority explained that the heart of this analysis is "whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly."
[47] In the present case, it is accepted by the parties that the appeals officer owed a duty of fairness to the parties and that this duty included the right to be informed of the case to be met and the right to adduce evidence and make submissions on relevant issues.
[48] What is at issue is whether the appeals officer deprived Canada Post of a meaningful opportunity to present its case fully and fairly. I turn to each instance of alleged unfairness.
a. The Regulations
[49] With respect to the Regulations, Canada Post had argued at the hearing that Ms. Pollard had an existing back injury so that any danger she would experience was the result of her own personal health situation. The appeals officer, on the evidence, rejected the submission that Ms. Pollard had an ongoing health problem that required formal job accommodation. The appeals officer went on, at paragraph 97 of his reasons, to find that the "average person" concept contemplated a range of physical and mental frailties normal to the human condition. The appeals officer found further support for this view in section 14.48 of the Regulations.
[50] Canada Post complains that the appeals officer failed to advise the parties that he was considering the application of this provision, thereby denying Canada Post of the opportunity to make submissions as to its applicability in this case.
[51] In my respectful view, the appeals officer did not breach the requirements of procedural fairness by referring to section 14.48 of the Regulations. This is so because it was proper and foreseeable that the appeals officer would have regard to regulations enacted pursuant to the legislation that he was charged with administering. Moreover, the officer's reference to the Regulations was incidental to the officer's decision that an ergonomic danger existed. The Regulations were relied upon by the appeals officer only to buttress his opinion that any danger that Ms. Pollard faced was not the result of her personal health situation.
[52] In this context, the failure of the appeals officer to advise the parties that he intended to mention a particular regulatory provision in his reasons did not deprive Canada Post of a meaningful opportunity to present its case fully and fairly.
b. Traffic Safety Issues
[53] Canada Post argues that, during the course of the hearing, its counsel expressed concern as to the relevance of evidence received by the appeals officer concerning traffic safety. It says that “on virtually every occasion when Counsel for Canada Post raised its concerns, the Appeals Officer clearly stated that if he considered that the issue of traffic safety would be a material consideration in his deliberations, he would so advise the parties and provide them with an opportunity to present evidence and argument on the issue”. Subsequently, the appeals officer rendered his decision and a direction on traffic safety. Canada Post asserts that it was not provided with an opportunity to adduce evidence and make submissions on the traffic safety issues and that this constitutes a breach of procedural fairness.
[54] Ms. Pollard responds that no breach occurred because:
(i) she and her representative raised traffic safety issues at the appeal hearing and led evidence relating to traffic hazards;
(ii) in considering whether to admit this evidence, the appeals officer stated on a number of occasions during the hearing that he would have to determine whether his appeal mandate extended to consideration of traffic safety issues;
(iii) on April 25, 2006, during the hearing, the appeals officer gave notice to the parties that he considered the traffic safety issues to be relevant and indicated that they needed to be considered; and
(iv) the appeals officer invited the parties to make submissions on the traffic safety issues.
[55] Ms. Pollard also argues that a number of references to the transcript relied upon by Canada Post in support of it submission do not relate to the traffic safety issues (for example, the exchange on page 38 of the transcript of the hearing on April 26, 2006, which is found at page 708 of the applicant’s record).
[56] A review of the transcript reveals that, throughout the hearing, there was a tension between the parties as to the proper scope of inquiry before the appeals officer. To illustrate, Ms. Pollard, in her opening statement, sought to raise a number of matters that were outside the jurisdiction of the appeals officer (see pages 23 through 29 of the transcript of the hearing on February 16, 2006, which are found at page 544 of the applicant’s record and following). By contrast, Canada Post argued that a narrower focus was appropriate, stating that the appeals officer was to put himself in the shoes of the HSO in order to determine whether the HSO’s decision was sound in law.
[57] The tension was elevated because, while Canada Post was represented by counsel, Ms. Pollard was not. She was represented by a union representative, who candidly admitted to his lack of familiarity with the process. As a result, Ms. Pollard was not always clear on the nature of the issues she was raising before the appeals officer. For example, at one point, her representative described the act of stretching while not wearing a seatbelt to be an ergonomic issue (see pages 135 through 136 of the transcript of the hearing on February 16, 2006, which is found at page 572 of the applicant’s record).
[58] The tension was also compounded by the appeals officer's desire to provide a degree of latitude to Ms. Pollard and her representative, and by his failure to make a definitive ruling during the hearing on the scope of the issues properly before him. These matters are reflected, I believe, in Schedule B to these reasons. Schedule B is a brief survey of the evidence and submissions at the hearing concerning the issues of traffic safety and procedural fairness.
[59] Dealing more specifically with the evidence, the hearing proceeded on February 16, April 25, and April 26, 2006. On February 16, 2006, counsel for Canada Post objected to the relevance of certain documents referred to during Ms. Pollard's direct examination (particularly a list of mailboxes that were said to be unsafe for delivery). The documents were received by the appeals officer, notwithstanding that, with respect to the list of unsafe mailboxes, he was "uncertain, still in my mind, what this is relating to and what is relevant" (page 153 of the transcript of February 16, 2006). The appeals officer went on to advise the parties that:
THE CHAIRPERSON: Exactly. But given that I’m authorized by the Code to issue a direction pursuant to 145.2, it leaves the question in the Tribunal’s mind as to what is their responsibility should in the evidence they become aware of a hazard in connection with essentially the issue that they’re looking at.
In other, in evidence, if I suddenly am convinced that a danger existed with regard, I’ll be specific, with regard to somebody smashing into the back of a vehicle.
I’ll leave it for your argument as to what I should be doing with that in terms of should I be looking at it? Should I interpret my powers under the Code, to address it?
Now, to try and make certain that we don’t leave parties with a sense of unfairness, often in a case, once I’ve heard it, if I feel that I’m going to be going into another area that would not have necessarily come to the understanding of the parties during the hearing, then what I’ll do is reconvene the hearing and I’ll be saying to you, I am considering something that perhaps you didn’t appreciate and therefore I’ll take an opportunity to give you time to give evidence and argumentation with that.
We’re not at that stage but I’m just going to indicate to you that when I’m deciding whether to take a document, part of it is so that I have [a] picture of the complete situation so that, at the end of it, I can say to myself, I’m satisfied that I looked at all of the aspects of the hazards that were involved in the circumstance and that if I have concerns, then I’ll raise it with parties.
And I think when I repeat the phrase from time to time, that you’ll have an opportunity to argue its weight in summation, that I’m taking you into an area that I think that you may not have fairly anticipated, then I give you a full opportunity to readdress it.
I don’t know how much more I can say than that. In fact, one of the challenges in a hearing where you have a party that’s unrepresented by counsel is that you help with the process but you not wander into the case and it’s a tightrope and I think I walked it as far as I want to. [underlining added]
[60] On April 25, 2006, counsel for Canada Post again objected that evidence with respect to traffic safety was not relevant (page 70 of the transcript of April 25, 2006). The appeals officer responded as follows:
THE CHAIRPERSON: I will certainly agree with you that there is an issue that I’m going to have to resolve in my decision, and that’s with regard to the matters of the other – about the safety concerns off the road.
Certainly, Health and Safety Officer Manella had concerns that he ended up issuing a direction. He found no danger but he still issued a direction and I’m satisfied by his direction that he was looking at other things than just the ergonomics. He simply decided that that didn’t constitute a danger.
Now, one of the things that I think you have an opportunity in arguing this is to address that very thing as to what consideration I should be giving to that.
I think given that the review by an appeal officer is (inaudible) and I certainly accept the fact that what precipitated the appeal is an appeal under Section 129(7), which is the refusal to work and not the direction issued under 145(1) of the Canada Labour Code.
But at the same time, there is a totality of circumstance here that I just feel, at least in gathering evidence here that I have to listen to, and certainly make some decision in my final decision with regard to whether I should be venturing in on those other aspects.
Certainly one of the things, whenever there is a review pursuant to Subsection 129(7) is to decide if the danger existed and what direction ought to have been, and what direction is required, if there is a finding of danger.
And I certainly, just sitting here, I’m kind of thinking that I would want to hear the evidence with regard to the total situation so that I can decide later in my mind whether or not the danger did extend to the things that Health and Safety Officer Manella perhaps had not properly reviewed, or given weight.
I’m not quite sure where I’m going with it, but it certainly strikes me that I should hear the evidence and hear the arguments from both parties as to my mandate under the code, under my review here as to whether or not I should be looking beyond the ergonomic issue.
I’m certainly willing to take your argument on that but I will give you advance notice that I’m considering it. It’s an issue that I think needs to be considered.
And I’m saying that to an extent too because some of the evidence that was provided by way of documents and the reports, the various reports, certainly indicate that Health and Safety Officer Manella was aware of some other issues ongoing. And so as I say, I just think I have to look at the evidence and then make some decision as to where my mandate is with the final decision on this. [underlining added]
[61] Later that day, the appeals officer repeated his uncertainty as to the proper scope of the hearing in the following terms:
THE CHAIRPERSON: Okay. As I’ve indicated to Mr. Bird already, I have some question in my mind as to whether or not my mandate for reviewing an appeal under Section 129(7), Ms. Pollard’s appeal, includes all of the evidence that I’m going to receive with regard to safety issues around that situation.
I know that, and I can’t cite a case, but I know the federal court has said in the past that safety officers cannot be expected to go in and essentially do fishing expeditions. If an employee were to say there’s a danger here and not really identify what the danger is, just say I’m not sure but I’m certain that there’s a danger here.
The federal court has said, no, you can’t turn it as that vague.
They have not come up with anything that goes to the opposite, which would be employee complains about a danger, a safety officer goes in, there are several dangers around them, they focus only on the one that the employee raises with them and leaves.
Whether or not that is, whether or not the federal court would be saying, or whether or not any review body would say well, you ought to have looked at it and not just been limited to what the employee said. It’s something that’s there and you could see that it was a contravention or even more seriously, a danger, then I’m not so certain that anybody, if it ever was reviewed in a court, would say no, you shouldn’t have looked at that.
It goes a little bit to that. It goes a little bit to exactly what the issue is before me, and that is how Safety Officer Manella was, as I’m saying, from the evidence, was made aware of a certain situation that was evolving, suggested a solution, which was internal complaint resolution, and then, upon her refusal, decided one matter was not constituting a danger and felt obligated to issue a direction in the other.
Since my review brings me into face with all the facts, the question I have to ask myself is would anybody expect me not to look at other areas that through the evidence I’m receiving that might constitute a danger, even though Health and Safety Officer Manella did not. [underlining added]
[62] During final argument, counsel for Canada Post reiterated its position that Ms. Pollard's complaint dealt strictly with ergonomic issues. After hearing the final arguments of both parties, the appeals officer made the following comments:
THE CHAIRPERSON: All right then.
With that, we have completed this portion, this part of the appeal process.
As I indicated, what I’ll do now is I’ll return to my office and I’ll be going over the material and making my analysis.
If I have any questions I’ll relay them through Madame Paris or if there are issues that I wish to, that I am going to indicate to parties that I’ll be pursuing in my direction, then I will certainly, as I indicated to Mr. Bird earlier, provide parties with an opportunity to provide new evidence on that. [underlining added]
[63] A fair reading of the transcript shows, in my view, that the appeals officer, during the course of the hearing, advised the parties that:
· he had not resolved in his own mind whether the traffic safety issues were properly before him;
· he wanted to receive evidence from Ms. Pollard so that he could later decide whether the danger extended traffic safety issues;
· after hearing the evidence and argument as to his mandate, he would consider whether he should be looking beyond the ergonomic issue; and
· if he decided that he would deal with the traffic safety issues, he would reconvene the hearing and allow the parties to adduce evidence.
[64] With the benefit of hindsight, it would have been prudent for Canada Post to adduce at least some evidence about traffic safety. Nevertheless, by concluding only in his final decision that the issue of traffic safety was properly before him, without advising Canada Post of that conclusion and allowing it to adduce evidence as to traffic safety, the appeals officer deprived Canada Post of the opportunity to present its case fully and fairly. In so doing, the officer breached the d