Maritime Employers' Association v. Syndicat des Débardeurs, C.U.P.E. Local 375

Maritime Employers' Association v. Syndicat des Débardeurs, C.U.P.E. Local 375
Court (s) Database
Federal Court Decisions
Date
2006-01-24
Neutral citation
2006 FC 66
File numbers
T-213-05
Decision Content
Date: 20060124
Docket: T-213-05
Citation: 2006 FC 66
Ottawa, Ontario, the 24th day of January 2006
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
MARITIME EMPLOYERS' ASSOCIATION
Applicant
and
SYNDICAT DES DÉBARDEURS, C.U.P.E. LOCAL 375
Respondent
REASONS FOR ORDER
[1] This application for judicial review is from decision No. 04-046 and the related direction issued by Pierre Guénette in his capacity as an appeals officer (the appeals officer) appointed pursuant to section 146 of Part II of the Canada Labour Code (R.S.C. 1985, c. L-2).
[2] In that decision the appeals officer dismissed the appeal filed by the Maritime Employers' Association (the MEA) asking that the direction on danger issued regarding the MEA by the health and safety officer Steve Sirois (the safety officer) pursuant to paragraph 145(2)(a) of the Code be quashed.
STATEMENT OF FACTS
[3] This case originates in the tragic accident which took the life of André Lacoste, an inspector employed by the Montréal Port Authority, on February 17, 2003. At the time of the accident inspector Lacoste was working on the premises operated by Racine Terminal in the Port of Montréal.
[4] The safety officer's investigation disclosed that the accident occurred when Mr. Lacoste was inspecting cylinders of uranium hexafluoride (UF6) while stevedoves were engaged in placing a cylinder of UF6 in a container. When this container slipped, inspector Lacoste was crushed between two containers: he was pronounced dead on arrival at hospital.
[5] As a result of his investigation officer Sirois concluded that a situation of danger existed, which he described in his direction as follows:
The presence of workers between the containers while these containers are being moved or shipped is a dangerous situation that leaves the workers at risk of being crushed.
[6] In accordance with the power conferred on him by paragraph 145(2)(a) of the Code, the safety officer issued a direction to the Montréal Port Authority, Racine Terminal and the Maritime Employers' Association concerning this danger, requiring them "to protect your employees against this danger".
[7] In his investigation report to the Canada Appeals Office on April 8, 2003, officer Sirois explained why he had sent his direction to the three aforesaid bodies. In the case of the Montreal Port Authority, its employees were near the containers when the UF6 cylinders were being put in place. As to Racine Terminal, the stevedores working for the latter were likely to be near containers during manoeuvres; additionally, the stevedores were under the authority of Racine Terminal when they were working on premises operated by that business. Finally, according to the information available to officer Sirois the stevedores were also under the authority of the MEA: the said stevedores were standing near the container where the UF6 cylinder was installed.
[8] It should be noted that the safety officer found no breach of the employer's health and safety obligations under sections 124 and 125 of the Code. Accordingly, no direction was issued in this matter to anyone at any stage pursuant to subsection 145(1) of the Code.
[9] Pursuant to the direction sent to the MEA, the latter's health and safety coordinator verbally indicated to the safety officer on February 28, 2003 that the work done by the stevedores at the Racine Terminal was under the exclusive authority of the Racine Terminal, not the MEA. He pointed out that the MEA provided no supervision for the stevedores and did not pay them. He also added that as the MEA was not the operator of the workplace it could not post any direction or notice of danger. A few days later, on March 3, 2003, the MEA health and safety coordinator wrote Mr. Sirois to confirm that the MEA could not comply with the direction and the notice of danger [TRANSLATION] "since it is impossible to carry them out".
[10] In a letter dated March 5, 2003 Mr. Sirois informed the MEA health and safety coordinator that he considered his reply to the direction [TRANSLATION] "satisfactory", in view of the particulars indicated as to the MEA's function. In his investigation report to the Canada Appeals Office, Mr. Sirois even wrote that he had contacted the MEA coordinator to tell him that he could take down the direction and the notice of danger.
[11] However, it should be added that in the same investigation report dated April 8, 2003 Mr. Sirois added the following:
As a result of our follow-up on the investigation, we concluded that the stevedores are employed and compensated by the Maritime Employers' Association. Moreover, any required disciplinary measures are taken by the Maritime Employers' Association.
[12] In any case, on March 17, 2003 the MEA filed an appeal with appeals officer Pierre Guénette, as it was authorized to do by section 146 of the Code. The MEA asked to have the direction quashed in its entirety on the ground that it was not the supervisor or operator of the stevedoring activities and so could not comply with the direction.
DECISION OF APPEALS OFFICER
[13] In his decision on December 6, 2004 the appeals officer concluded, following an exhaustive review of the facts put before him, the Code and the collective agreement between the MEA and the Syndicat des Débardeurs, that the MEA was an employer of the stevedores for the purposes of Part II of the Code, but did not control the workplace of each stevedoring business in the Port of Montréal.
[14] On the first question, the appeals officer first noted that officer Sirois had contradicted himself when he first concluded that the MEA was an employer covered by Part II of the Code and could be the subject of a direction, and then accepted the submissions made by the MEA coordinator and confirmed that the latter did not have a duty to comply with the direction. Under subsection 146(2) of the Code, only an appeals officer may quash a direction.
[15] Then, after carefully reviewing the collective agreement, the appeals officer made the following findings. The MEA was described in the collective agreement as the employer, and clause 1.02 identified the MEA as the sole bargaining agent and representative of the stevedoring businesses in the Port of Montréal. It also had many responsibilities that usually belong to the employer, such as health and safety training, disciplinary penalties and the deployment of labour. Although, unlike Part I, Part II of the Code does not define an employer's organization, the MEA performed such a role as a result of its constitution and functions.
[16] Further, the MEA was solely responsible for hiring any new employees and had responsibility for planning employees' assignments to various stevedoring businesses in the Port of Montréal. The agreement concluded with the Syndicat des Débardeurs defines the latter's working conditions, and the MEA has the responsibility of raising any matter concerning working relations and conditions with the joint labour relations committee. The collective agreement further provides that where the MEA introduces a technological change, a new operation or a new work method it must inform the union. The MEA also has a duty to ensure that the employees comply with the collective agreement clause requiring them to use materials, equipment, devices and regulation safety clothing supplied by the MEA as employer. Finally, the MEA informs stevedores of the duties they must perform in accordance with their respective classifications, when they are assigned to various businesses. In the view of the appeals officer, the stevedores did not automatically become employees of the various businesses for which they worked during the time they were assigned to those businesses.
[17] The appeals officer accordingly came to the following conclusion, on the first question he had to decide:
In light of the different factors mentioned above and the documents that were sent to me, I conclude that the MEA, pursuant to the authority it carries at the Port of Montreal, has all the characteristics of an employer under the meaning of the Code, and, as a consequence, the Code applies to the MEA.
[18] On the second point, the appeals officer said that in his opinion as the MEA was the employer responsible for stevedores in the Port of Montréal, it was responsible for the duties performed by the stevedores even if it did not control the workplace of each stevedoring business in the Port of Montréal. While clause 3 of the collective agreement states that stevedoring businesses will operate and control the workplace, section 124 of the Code does provide that the employer shall ensure that its employees are protected. Section 125 of the Code is also applicable: even if the MEA does not control the workplace, it must still comply with all the specific obligations listed in that section for any task performed by employees to the extent that as employer it has control over such tasks.
[19] Consequently, the MEA could be the subject of a direction. Appeals officer Pierre Guénette concluded his reasons as follows:
[53] In view of the facts established by officer Sirois, it is clear that there was a dangerous situation at the Port of Montréal on February 17, 2003. Moreover, employees (including stevedores) who come under the MEA and stevedores' union collective agreements were around the container at the time of the accident. Therefore, officer Sirois was required to issue a direction to the MEA as these workers' employer, but not as the operator of the workplace.
[54] For these reasons, under the authority vested in me by section 146.1 of the Code, I am varying the direction on the dangerous situation issued to the MEA on February 17, 2003 under paragraph 145(2)(a) of the Code. This amendment takes into consideration the fact that the MEA does not control the workplace strictly speaking, it only controls tasks performed by the stevedores in the workplaces, to the extent that it controls the assignment of stevedores based on their classifications and the tasks that need to be performed. As a consequence, the amended direction is appended.
[20] The direction of February 17, as amended by the appeals officer, thus reads as follows:
On February 17, 2003, the health and safety officer conducted an investigation into the death of André Lacoste in the workplace operated by Racine Terminal, an MEA member to which the MEA assigned stevedores under its authority. The workplace is located in sections 57-64 of the Port of Montréal, sometimes known as Port of Montreal Racine Terminal.
The health and safety officer considers that the presence of workers among the containers when these containers are being moved or when these containers are being loaded presents a danger that workers may be crushed.
In consequence, you are HEREBY ORDERED, pursuant to Canada Labour Code Part II paragraph 145(2)(a), to take measures to protect your employees against this danger.
ISSUES
[21] Three issues must be resolved in the application for judicial review at bar:
(a) What is the standard of review applicable to the appeals officer's decision?
(b) Did the appeals officer err when he concluded that the MEA should be regarded as an employer for the purposes of Part II of the Canada Labour Code?
(c) Did the appeals officer err when he concluded that the MEA could be the subject of a direction issued pursuant to paragraph 145(2)(a) of the Code?
APPLICABLE LEGISLATION [22] To fully understand the matter it is worth setting out here certain provisions of the Canada Labour Code, and in particular Part II. The purpose of that Part, as indicated in section 122.1, 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". Section 122.2 sets out how this prevention is to be achieved:
Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.
La prévention devrait consister avant tout dans l'élimination des risques, puis dans leur réduction, et enfin dans la fourniture de matériel, d'équipement, de dispositifs ou de vêtements de protection, en vue d'assurer la santé et la sécurité des employés.
[23] Additionally, the obligations of employers (who are defined in subsection 122(1)) are set out in sections 124 to 125.3. Section 124 indicates in general that the employer must ensure the protection of every person employed, while sections 125 et seq. give further particulars of this obligation in terms of the context and nature of the work performed:
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.
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122.1 La présente partie a pour objet de prévenir les accidents et les maladies liés à l'occupation d'un emploi régi par ses dispositions.
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124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.
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124. L'employeur veille à la protection de ses employés en matière de santé et de sécurité au travail.
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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,
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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 :
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(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;
c) selon les modalités réglementaires, d'enquêter sur tous les accidents, toutes les maladies professionnelles et autres situations comportant des risques dont il a connaissance, de les enregistrer et de les signaler aux autorités désignées par les règlements;
(d) post at a place accessible to every employee and at every place directed by a health and safety officer
(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 may be directed by a health and safety officer or that is prescribed;
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d) d'afficher à un endroit accessible à tous les employés et dans tous autres lieux déterminés par l'agent de santé et de sécurité :
(i) le texte de la présente partie,
(ii) l'énoncé de ses consignes générales en matière de santé et de sécurité au travail,
(iii) les imprimés réglementaires concernant la santé et la sécurité ou ceux que précise l'agent de santé et de sécurité;
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(q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work;
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q) d'offrir à chaque employé, selon les modalités réglementaires, l'information, la formation, l'entraînement et la surveillance nécessaires pour assurer sa santé et sa sécurité;
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(s) ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works;
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s) de veiller à ce que soient portés à l'attention de chaque employé les risques connus ou prévisibles que présente pour sa santé et sa sécurité l'endroit où il travaille;
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(x) comply with every oral or written direction given to the employer by an appeals officer or a health and safety officer concerning the health and safety of employees . . .
x) de se conformer aux instructions verbales ou écrites qui lui sont données par l'agent d'appel ou l'agent de santé et de sécurité . . .
[24] Section 140 provides that the Minister may appoint health and safety officers to ensure implementation of Part II of the Code. The latter are given a number of powers, including that of conducting investigations when a death occurs at a workplace:
141(4) A health and safety officer shall investigate every death of an employee that occurred in the work place or while the employee was working, or that was the result of an injury that occurred in the work place or while the employee was working.
141. (4) L'agent fait enquête sur tout décès d'employé qui survient dans le lieu de travail ou pendant que l'employé était au travail ou qui résulte de blessures subies dans les mêmes circonstances.
(5) If the death results from a motor vehicle accident on a public road, as part of the investigation the health and safety officer shall obtain a copy of any police report as soon as possible after the accident.
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(5) Lorsque le décès résulte d'un accident survenu sur la voie publique et impliquant un véhicule automobile, l'agent chargé de l'enquête doit notamment obtenir dans les meilleurs délais des autorités policières compétentes tout rapport de police s'y rapportant.
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145. (1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to
145. (1) S'il est d'avis qu'une contravention à la présente partie vient d'être commise ou est en train de l'être, l'agent de santé et de sécurité peut donner à l'employeur ou à l'employé en cause l'instruction :
(a) terminate the contravention within the time that the officer may specify; and
a) d'y mettre fin dans le délai qu'il précise;
(b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.
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b) de prendre, dans les délais précisés, les mesures qu'il précise pour empêcher la continuation de la contravention ou sa répétition.
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(2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,
(2) S'il estime que l'utilisation d'une machine ou chose, une situation existant dans un lieu de travail ou l'accomplissement d'une tâche constitue un danger pour un employé au travail, l'agent :
(a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to
a) en avertit l'employeur et lui enjoint, par instruction écrite, de procéder, immédiatement ou dans le délai qu'il précise, à la prise de mesures propres :
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(i) soit à écarter le risque, à corriger la situation ou à modifier la tâche,
(ii) protect any person from the danger; and
(ii) soit à protéger les personnes contre ce danger;
(b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer's directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.
b) peut en outre, s'il estime qu'il est impossible dans l'immédiat de prendre les mesures prévues à l'alinéa a), interdire, par instruction écrite donnée à l'employeur, l'utilisation du lieu, de la machine ou de la chose ou l'accomplissement de la tâche en cause jusqu'à ce que ses instructions aient été exécutées, le présent alinéa n'ayant toutefois pas pour effet d'empêcher toute mesure nécessaire à la mise en oeuvre des instructions.
(3) If a health and safety officer issues a direction under paragraph (2)(a), the officer shall affix or cause to be affixed to or near the place, machine or thing in respect of which the direction is issued, or in the area in which the activity in respect of which the direction is issued is performed, a notice in the form and containing the information that the Minister may specify, and no person shall remove the notice unless authorized to do so by a health and safety officer.
(3) L'agent qui formule des instructions au titre de l'alinéa (2)a) appose ou fait apposer dans le lieu, sur la machine ou sur la chose en cause, ou à proximité de ceux-ci ou à l'endroit où s'accomplit la tâche visée, un avis en la forme et la teneur que le ministre peut préciser. Il est interdit d'enlever l'avis sans l'autorisation de l'agent.
(4) If a health and safety officer issues a direction under paragraph (2)(b) in respect of a place, machine, thing or activity, the employer shall cause the use or operation of the place, machine or thing or the performance of the activity to be discontinued, and no person shall use or operate the place, machine or thing or perform the activity until the measures directed by the officer have been taken.
(4) Dans le cas visé à l'alinéa (2)b), l'employeur doit faire cesser l'utilisation du lieu, de la machine ou de la chose en cause, ou l'accomplissement de la tâche visée, et il est interdit à quiconque de s'y livrer tant que les mesures ordonnées par l'agent n'ont pas été prises.
(5) If a health and safety officer issues a direction under subsection (1) or (2) or makes a report in writing to an employer on any matter under this Part, the employer shall without delay
(5) Dès que l'agent donne les instructions écrites visées aux paragraphes (1) ou (2) ou adresse un rapport écrit à un employeur sur un sujet quelconque dans le cadre de la présente partie, l'employeur est tenu :
(a) cause a copy or copies of the direction or report to be posted in the manner that the officer may specify; and
a) d'en faire afficher une ou plusieurs copies selon les modalités précisées par l'agent;
(b) give a copy of the direction or report to the policy committee and a copy to the work place committee or the health and safety representative.
b) d'en transmettre copie au comité d'orientation et au comité local ou au représentant, selon le cas.
[25] The Minister may further appoint appeals officers (s. 145.1(1)), who may vary, rescind or confirm the safety officer's decision or direction on the application of the employer, employee or union:
146. (1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing.
146. (1) Tout employeur, employé ou syndicat qui se sent lésé par des instructions données par l'agent de santé et de sécurité en vertu de la présente partie peut, dans les trente jours qui suivent la date où les instructions sont données ou confirmées par écrit, interjeter appel de celles-ci par écrit à un agent d'appel.
(2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.
(2) À moins que l'agent d'appel n'en ordonne autrement à la demande de l'employeur, de l'employé ou du syndicat, l'appel n'a pas pour effet de suspendre la mise en oeuvre des instructions.
146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may
146.1 (1) Saisi d'un appel formé en vertu du paragraphe 129(7) ou de l'article 146, l'agent d'appel mène sans délai une enquête sommaire sur les circonstances ayant donné lieu à la décision ou aux instructions, selon le cas, et sur la justification de celles-ci. Il peut :
(a) vary, rescind or confirm the decision or direction; and
a) soit modifier, annuler ou confirmer la décision ou les instructions;
(b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).
b) soit donner, dans le cadre des paragraphes 145(2) ou (2.1), les instructions qu'il juge indiquées.
(2) The appeals officer shall provide a written decision, with reasons, and a copy of any direction to the employer, employee or trade union concerned, and the employer shall, without delay, give a copy of it to the work place committee or health and safety representative.
(2) Il avise par écrit de sa décision, de ses motifs et des instructions qui en découlent l'employeur, l'employé ou le syndicat en cause; l'employeur en transmet copie sans délai au comité local ou au représentant.
(3) If the appeals officer issues a direction under paragraph (1)(b), the employer shall, without delay, affix or cause to be affixed to or near the machine, thing or place in respect of which the direction is issued a notice of the direction, in the form and containing the information that the appeals officer may specify, and no person may remove the notice unless authorized to do so by the appeals officer.
(3) Dans le cas visé à l'alinéa (1)b), l'employeur appose ou fait apposer sans délai dans le lieu, sur la machine ou sur la chose en cause, ou à proximité de ceux-ci, un avis en la forme et la teneur précisées par l'agent d'appel. Il est interdit d'enlever l'avis sans l'autorisation de celui-ci.
(4) If the appeals officer directs, under paragraph (1)(b), that a machine, thing or place not be used or an activity not be performed until the direction is complied with, no person may use the machine, thing or place or perform the activity until the direction is complied with, but nothing in this subsection prevents the doing of anything necessary for the proper compliance with the direction.
(4) L'interdiction -- utilisation d'une machine ou d'une chose, présence dans un lieu ou accomplissement d'une tâche -- éventuellement prononcée par l'agent d'appel aux termes de l'alinéa (1)b) reste en vigueur jusqu'à exécution des instructions dont elle est assortie; le présent paragraphe n'a toutefois pas pour effet de faire obstacle à la prise des mesures nécessaires à cette exécution.
[26] Finally, the decisions of the appeals officer are protected by quite watertight privative clauses, as indicated by sections 146.3 and 146.4 of the Code:
146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any court.
146.3 Les décisions de l'agent d'appel sont définitives et non susceptibles de recours judiciaires.
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.
146.4 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.
ANALYSIS
(A) STANDARD OF REVIEW
[27] Determining the standard of review is not simply a formal and academic exercise, but on the contrary is for the purpose of clarifying the intention of the legislature which has created the administrative entity whose decision is at issue. As Sopinka J. noted in Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, at paragraph 18: "Was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?". That is the question which this Court must ask in order to determine the degree of deference which it must demonstrate in reviewing the decision made by the appeals officer.
[28] Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, it is well settled that several factors must be taken into account to arrive at the legislature's intention. This is what has been called the pragmatic and functional method. In that case, Beetz J. at 1086 set out in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:
1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review.
2. if however the question at issue concerns a legislative provision limiting the tribunal's powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.
[29] These principles have subsequently been applied in many cases, especially in the labour relations field. The Supreme Court has often repeated that courts should exercise great restraint when dealing with specialized tribunals on points of law falling within the expertise of the latter. Of course, the existence of a "full" privative clause (that is, one which states that the tribunal's decisions are final and binding and may not be the subject of an appeal and that any form of judicial review is prohibited) can only reinforce this deference by the courts to administrative bodies (see e.g. Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941).
[30] It will not always be easy to determine whether a point of law falls within the jurisdiction of an administrative tribunal or, on the contrary, has to do with a legislative provision which limits the tribunal's powers. This is where the pragmatic and functional method comes into play. Using four contextual factors (the presence or absence of a privative clause or right of appeal in legislation, the expertise of the tribunal compared to the reviewing court on the point at issue, the purpose of the legislation and of the particular provision and the nature of the question), the court will be in a better position to determine the legislature's intention and decide on the degree of deference it should show to the conclusion by the administrative tribunal.
[31] It is not necessary for this Court to undertake such an analysis in connection with the appeal at bar, as my colleague Tremblay-Lamer J. has recently performed this exercise: see Martin v. Canada (A.G.) (2004), 240 F.T.R. 130, 2003 FC 1158, 1 F.C.R. 625 (QL). That case involved an application for judicial review of a decision by an appeals officer to quash directions issued by a Canada Human Resources Development safety officer. After an investigation, the safety officer had concluded that not carrying a pistol was a danger for a parks warden, and directed Parks Canada either to alter the law enforcement duties assigned to wardens or to protect them from the dangers resulting from such duties. The appeals officer reversed this decision and upheld the directive on the ground that the safety officer had confused risk and danger and that the existence of a danger had not been proven.
[32] After a painstaking application of the four contextual factors mentioned above and an exhaustive analysis of the most relevant cases on the point (in particular Dr Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247), Tremblay-Lamer J. concluded that in general great deference should be shown to the decisions of appeals officers and said that in her opinion the standard of the patently unreasonable decision should be applied in reviewing their decisions. In so doing, she came to the same conclusion as Dawson J. in Canadian Freightways Ltd. v. Canada (A.G.) (2003), 231 F.T.R. 306, F.C.T.D. 391, F.C.J. No. 552 (QL).
[33] This decision is hardly surprising, in view of the stringent privative clause inserted in the Code by amendments made to the Code in September 2000. Moreover, the Supreme Court has many times repeated that the more stringent a private clause is, the greater must be the deference shown to decisions made by the entity so protected, unless there is some clear indication to the contrary: Pushpanathan, supra, at 1006; Dr Q, supra, at 239.
[34] In this regard, I take the liberty of reproducing a passage from Canada (A.G.) v. Public Service Alliance of Canada, supra, at 963, already reproduced by my colleague Tremblay-Lamer J. in Martin, supra, at para. 31:
A board which is created and protected by a privative clause is the manifestation of the will of Parliament to create a mechanism that provides a speedy and final means of achieving the goal of fair resolution of labour-management disputes. To serve its purpose these decisions must as often as possible be final. If the courts were to refuse to defer to the decisions of the Board, they would negate both the very purpose of the Act and its express provisions.
[35] It is thus not surprising that the Federal Court of Appeal has lent its weight to this decision: see Martin v. Canada (A.G.) (2005), 334 N.R. 43, 2005 FCA 156, F.C.A. No. 752 (QL). In so doing, it used the language employed by McLachlin J. (as she then was) in Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, to which Tremblay-Lamer J. herself referred in her judgment and from which she cited the following passage at 669:
Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere.
[36] On the second question raised by the case at bar, namely whether the appeals officer erred in deciding that the MEA could be the subject of a direction due to the fact that it controlled the duties performed by stevedores in a workplace, even if it did not operate the workplace, it would seem that the applicable standard of review is not in doubt. In view of the privative clause, the expertise of the appeals officer, the purpose of the applicable provisions and the essentially factual nature of this question, the standard applicable on this point can only be that of the patently unreasonable decision. Moreover, the parties did not disagree in this regard.
[37] Somewhat more delicate is the question of whether the same standard should be applied to the first of the appeals officer's two decisions, namely that the MEA may be regarded as an employer for the purposes of Part II of the Code. Is this another question which the legislature intended to leave entirely to the determination of the appeals officer, and on which this Court should only intervene in cases of the most apparent error?
[38] The applicant argued that there is no provision in Part II of the Code giving the appeals officer exclusive jurisdiction to determine, based on his own expertise, who the employer is in given circumstances. In the applicant's submission, the legislature often inserts such provisions in labour legislation when it intends to give the administrative tribunal the last word in identifying the employer. Subsection 122(1), it argued, does not allow the appeals officer to determine who the employer is, but rather to decide whether an employer who meets the definition has performed its health and safety obligations. Consequently, it is the standard of the correct decision that, in its submission, should be applied in dealing with this question.
[39] The respondent, on the other hand, maintained that the question of whether the MEA is an employer within the meaning of the Code is a mixed question of fact and law, inasmuch as the appeals officer had to interpret the concept of an employer defined in subsection 122(1) of the Code and then inquire whether the MEA met that definition. Consequently, and taking into account the other contextual factors, it maintained that the applicable standard of review should be that of the patently unreasonable decision.
[40] It is true, as the applicant noted, that the legislature has been much more explicit regarding the appeals officer's power to identify the employer under Part of the Code (see paragraph 16(p)(i)). Nonetheless, I consider that identification of the employer in connection with Part II of the Code unquestionably belongs to the jurisdiction conferred on appeals officers, who must necessarily conduct this exercise before carrying out the duties and discharging the responsibilities conferred on them by the legislature.
[41] The judgment of the Federal Court of Appeal in Martin, supra, in any case seems to be conclusive on this point. It will be recalled that Tremblay-Lamer J. had established at trial that the standard of review applicable to appeals officers' decisions was that of the patently unreasonable decision. Nevertheless, she saw fit to make an exception regarding the interpretation given by the appeals officer to the word "danger", the definition of which was amended by the legislature in November 2000. Because it was the first time that a court was ruling on this point, and her analysis would act as a precedent for the decisions of other appeals officers, she opted for the standard of the reasonable decision simpliciter.
[42] Relying essentially on the strong privative clauses found in sections 146.3 and 146.4, set out above, the Federal Court of Appeal reversed this part of the judgment by Tremblay-Lamer J. The Court of Appeal explained its reasoning in this way, in the following paragraph:
[17] Professor David Mullan has observed that in such cases "the legislature has expressed confidence in the ability of a decision-maker to interpret questions of law arising under its home statute and to itself establish a corpus of decisions having precedential value in the sense of application to many future cases." See Mullan, David J., "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59 at 77. One might question the wisdom of protecting legal interpretations of non-legally trained appeals officers from more intrusive review by the courts. However, the Court must take the statute as it finds it. The Court cannot apply common law principles that are implicitly inconsistent with strong legislative language. Where Parliament has expressed itself in the strong terms it has in the Canada Labour Code, I think it would be inconsistent for the courts to arrogate to themselves the power to establish precedence [sic] for a tribunal to follow in respect of the interpretation of its home statute.
[43] This decision is in all respects consistent with the opinions often expressed by the Supreme Court on the point. Once the relative expertise of a tribunal has been established, courts should show considerable deference not only on points of fact, but also on questions relating to the interpret