Canada Post Corp. v. Canadian Union of Postal Workers

Canada Post Corp. v. Canadian Union of Postal Workers
Collection
Supreme Court Judgments
Date
2019-12-20
Neutral citation
2019 SCC 67
Report
[2019] 4 SCR 900
Case number
37787
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900
Appeal Heard: December 10, 2018 Judgment Rendered: December 20, 2019 Docket: 37787
Between:
Canada Post Corporation
Appellant
and
Canadian Union of Postal Workers
Respondent
- and -
Attorney General of Canada, DHL Express (Canada), Ltd., Federal Express Canada Corporation, Purolator Inc., TFI International Inc., United Parcel Service Canada Ltd., Workers’ Health and Safety Legal Clinic, FETCO Inc. (Federally Regulated Employers — Transportation and Communications), Canadian Union of Public Employees, Professional Institute of the Public Service of Canada, Rogers Communications Inc., Canadian Broadcasting Corporation, Bell Canada, Bell Technical Solutions Inc., Bell Media Inc., Maritime Employers Association, Halifax Employers Association, British Columbia Maritime Employers Association, International Longshore and Warehouse Union Canada, International Longshoremen’s Association, Locals 269, 1341, 1657 and 1825 and Canadian Union of Public Employees, Local 375
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 67)
Dissenting Reasons: (paras. 68 to 102)
Rowe J. (Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté and Brown JJ. concurring)
Abella J. (Martin J. concurring)
canada post corp. v. cupw
Canada Post Corporation Appellant
v.
Canadian Union of Postal Workers Respondent
and
Attorney General of Canada,
DHL Express (Canada), Ltd.,
Federal Express Canada Corporation,
Purolator Inc., TFI International Inc.,
United Parcel Service Canada Ltd.,
Workers’ Health and Safety Legal Clinic,
FETCO Inc. (Federally Regulated Employers —
Transportation and Communications),
Canadian Union of Public Employees,
Professional Institute of the Public Service of Canada,
Rogers Communications Inc.,
Canadian Broadcasting Corporation,
Bell Canada, Bell Technical Solutions Inc.,
Bell Media Inc., Maritime Employers Association,
Halifax Employers Association,
British Columbia Maritime Employers Association,
International Longshore and Warehouse Union Canada,
International Longshoremen’s Association,
Locals 269, 1341, 1657 and 1825 and
Canadian Union of Public Employees, Local 375 Interveners
Indexed as: Canada Post Corp. v. Canadian Union of Postal Workers
2019 SCC 67
File No.: 37787.
2018: December 10; 2019: December 20.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Labour relations — Federally‑regulated employer’s work place inspection obligation — Health and safety officer finding that employer failed to ensure that every part of work place is inspected at least once a year — Appeals officer concluding that employer’s work place inspection obligation applies only to parts of work place over which employer has control and rescinding contravention — Whether appeals officer’s interpretation of work place inspection obligation was reasonable — Framework for determining applicable standard of review and conducting reasonableness review set out in Vavilov applied — Canada Labour Code, R.S.C. 1985, c. L‑2, s. 125(1) (z.12).
Following a complaint and subsequent investigation, a health and safety officer found Canada Post Corporation, as a federally‑regulated employer, in contravention of certain health and safety obligations set out in Part II of the Canada Labour Code (“Code ”). The complaint was filed by a representative of the letter carriers’ union, who claimed that the work place safety inspections performed by the joint health and safety committee should include letter carrier routes and points of call. The health and safety officer issued a direction finding that the employer failed to comply with s. 125(1) (z.12) of the Code , which states that “every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employer in a work place that is not controlled by the employer, to the extent that the employer controls the activity, 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 one each year”. The employer appealed the health and safety officer’s direction to the Occupational Health and Safety Tribunal Canada. The appeals officer rescinded the contravention relating to work place inspections, determining that the work place inspection obligation applied only to the parts of the work place over which the employer had control; this did not include letter carrier routes and points of call. The Federal Court dismissed the union’s application for judicial review. The Federal Court of Appeal allowed the union’s appeal and reinstated the health and safety officer’s direction that the employer failed to comply with s. 125(1) (z.12) of the Code .
Held (Abella and Martin JJ. dissenting): The appeal should be allowed and the appeals officer’s order restored.
Per Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ.: Applying the framework set out in Vavilov for determining the applicable standard of review and conducting reasonableness review, the appeals officer’s decision concluding that the obligation to inspect the work place in s. 125(1) (z.12) of the Code is one that can only apply to an employer who has control over the physical work place was reasonable. The appeals officer’s analysis followed a rational and logical line of reasoning and his decision was defensible in light of the relevant legal and factual constraints. He employed well‑established principles of statutory interpretation, engaged with the submissions and evidence before him, and drew on his knowledge of the field when considering the practical implications of his interpretation. The interpretation he arrived at is harmonious with the text, context and purpose of the provision and aligns with past decisions of the Occupational Health and Safety Tribunal Canada.
The appeals officer’s decision is reviewable on a standard of reasonableness. None of the situations set out in Vavilov for departing from the presumption of reasonableness review apply here: the legislature has not statutorily prescribed a standard of review or provided for an appeal from the administrative decision to a court and the question on review does not fall into one of the categories of questions that the rule of law requires be reviewed on a standard of correctness.
As provided for in Vavilov, when conducting reasonableness review, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention, seeking to understand the reasoning process followed by the decision maker to arrive at a conclusion. What is required of statutory delegates to justify their decision will depend on the context in which the decision is made. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.
In the instant case, the appeals officer’s reasons do not in any way display a fatal flaw in rationality or logic. His decision was not rendered unreasonable by, on the one hand, recognizing that the employer through its internal policies seeks to identify and resolve hazards for letter carriers, while also concluding that it does not have the capacity to ensure all areas of the work place outside the employer’s physical building are inspected annually. Far from being internally incoherent, the appeals officer’s reasoning demonstrates his in‑depth understanding of the ways in which the employer fulfils the purposes of the Code , bearing in mind the practical limitations of the work place.
When reviewing a question of statutory interpretation, reviewing courts should not conduct a de novo interpretation, nor attempt to determine a range of reasonable interpretations against which to compare the interpretation of decision makers. A “reasons first” approach rather requires reviewing courts to start with how decision makers arrived at their interpretation, and determine whether it was defensible in light of the interpretative constraints imposed by law. Where the meaning of a statutory provision is in dispute, administrative decision makers must demonstrate in their reasons that they were alive to the essential elements of statutory interpretation. In addition to being harmonious with the text, context and purpose of the provision, a reasonable interpretation should conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law. The evidentiary record and the general factual matrix act as constraints on the reasonableness of a decision, and must be taken into account. The principles of justification and transparency require that administrative decision makers’ reasons meaningfully account for the central issues and concerns raised by the parties. However, administrative decisions makers are not required, on their own account, to consider every aspect of the statutory context that might bear on their decisions. While reviewing courts should ensure the decision under review is justified in relation to the relevant facts, deference to decision makers includes deferring to their findings and assessment of the evidence. Reviewing courts must pay respectful attention to decision makers’ demonstrated expertise when considering whether an outcome reflects a reasonable approach given the consequences and the operational impact of a decision.
In this case, the appeals officer interpreted s. 125(1) (z.12) using well‑established principles of statutory interpretation, with due regard to the submissions before him. His reasons amply demonstrate that he considered the text, context and purpose of the provision, and his focus on the practical implications of his interpretation enriched and elevated the interpretative exercise. He demonstrated a sustained effort to discern legislative intent throughout his analysis, and did not simply reverse‑engineer a desired outcome. His broad interpretation of what constitutes a work place conformed to the definition in the Code and to prior decisions on this point, and accounted for all the areas in which an employee may be engaged in work. His interpretation of the scope of the obligations arising from s. 125(1) was not contrary to the plain text of the statute, as the words “and” and “ainsi que” in the opening phrase of the English and French versions of s. 125(1) do not preclude the conclusion that the provision indicates that certain obligations apply only where an employer has control over the work place. The appeals officer’s reasons also demonstrate that he turned his mind to the context of s. 125(1) (z.12). He considered the practical implications of the interpretation in light of the purpose of s. 125(1) (z.12), an imputed purpose accepted by the parties and consistent with the broad, purposive interpretation afforded to remedial legislation. His interpretation did not frustrate the statutory purpose set out in the Code . There is no indication that he failed to consider the evidence presented at the hearing, or that he based his decision on a misapprehension of the evidence, thereby rendering his decision unreasonable.
Per Abella and Martin JJ. (dissenting): The appeal should be dismissed. The appeals officer’s conclusion that the safety inspection duty in s. 125(1) (z.12) of the Code requires the employer to inspect only those workplaces within its physical control was unreasonable and inconsistent with the purpose and text of the safety inspection provision. The employer contravened its statutory duty in s. 125(1) (z.12) by preventing the health and safety committee from inspecting mail routes for safety hazards.
The introductory language of s. 125 is an unambiguous dual legislative direction to employers that their safety obligations apply both to workplaces they control and, if they do not control the actual workplace, to every work activity that they do control to the extent of that control. Nothing in the text of s. 125(1) limits an employer’s inspection duty to workplaces under its physical control.
Section 125(1) (z.12) is part of an extensive web of employer responsibilities which flow from a general obligation placed on employers to ensure workplace safety, and are designed to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment. All of the 45 duties placed on employers are introduced by language stipulating that they apply in all workplaces controlled by employers and to all employer‑controlled work activities carried out by employees. Section 125(1) aims to protect workers from safety hazards — a purpose that is undermined if the safety inspection duty is confined to workplaces under an employer’s physical control. By drafting s. 125(1) to cover workplaces within and outside an employer’s physical control, Parliament sought to protect the thousands of employees working outside an employer‑owned location, affording the same quality of safety protection to all employees wherever they work.
Safety inspections were a central methodology by which Parliament intended to broaden preventive health and safety protections for workers. They exist to proactively identify hazards before workers are exposed to them, and ensure that they will either be fixed or avoided. It makes little sense that Parliament, having expressly chosen under s. 125(1) to extend safety protections to activities in workplaces outside an employer’s control, would have intended that a core part of those protections — the safety inspection duty — be exempt from that extension. The preventive purpose of the inspection obligation further reinforces that it was not meant to apply only to workplaces under an employer’s physical control.
A narrowing of the inspection duty is inconsistent with the expansive definitions of “workplace” found in many provincial health and safety statutes. The uniting feature of all these statutes is a functional, purposive definition of a workplace that centers on where the worker performs his or her employment, not on whether the employer controls the physical premises. The language of s. 125(1) (z.12) should not be interpreted in isolation to shrink an employer’s duty to protect workers from safety hazards; it should be read as part of s. 125(1) , which expressly imposes the duty in connection with any work activity to the extent that the employer controls the activity. Therefore, safety inspections should be done in a way that protects employee safety as much as possible in the circumstances, not in a way that deprives whole categories of workers — those who work outside a physical building — from protection.
The fact that the inspections may be difficult to carry out does not support eliminating the duty completely. Parliament did not intend that a provision binding all federally‑regulated employers be interpreted based on whether it is easy or difficult for any particular employer to implement. The language of s. 125(1) eschews an all‑or‑nothing view of the safety obligations, in favour of a context‑specific approach capable of accommodating the diverse group of federally‑regulated employers. The flexibility anticipated by s. 125(1) is underscored by Parliament’s delegation of inspection responsibilities to joint health and safety committees. By delegating the safety inspection obligation to joint workplace committees, Parliament clearly contemplated a flexible inspection process sensitive to workplace‑specific concerns and limitations. Just because inspections may be difficult does not mean that they do not have to be done at all, and just because hazards cannot be fixed entirely does not mean that nothing can be done to address them. This interpretation is the only one that is true to the preventive purpose of s. 125(1) in general and the safety inspection provision in particular.
In the instant case, the appeals officer’s reasoning process was deeply flawed. He acknowledged that safety inspections are meant to protect employees from workplace hazards, but failed to give this purpose, and the plain language of s. 125(1) , any meaningful effect, let alone a generous interpretation. His interpretation ignores the second part of s. 125(1) , which simultaneously imposes the inspection duty on employers for work activities in workplaces they do not control. In so restricting the scope of s. 125(1)(z.12), the appeals officer redrafted the provision. The employer’s control of the work activity of letter‑carriers is stringent, bringing its work arrangements with its letter‑carriers squarely within the language of s. 125(1) . By restricting inspections to locations where the employer exercises property rights, the appeals officer’s decision risks leaving workplace health and safety committees unable to proactively identify and address the hazards that may arise in the areas where letter‑carriers work. By reading out the words and purposes of the safety inspection duty, the appeals officer came to an unreasonable conclusion that subverted not only the preventive purpose of the employer safety duties in s. 125(1), but of the specific goal in s. 125(1) (z.12) to ensure that inspections are carried out to make workplace as safe as possible.
Cases Cited
By Rowe J.
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; referred to: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 653; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, rev’d in part 2011 SCC 57, [2011] 3 S.C.R. 572; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Delios v. Canada (Attorney General), 2015 FCA 117, 100 Admin L.R. (5th) 301; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; New Brunswick Liquor Corp. v. Small, 2012 NBCA 53, 390 N.B.R. (2d) 203; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635; Bell Canada, 2011 OHSTC 21; Mowat Express v. Communications, Energy and Paper Workers Union of Canada, [1994] C.L.C.R.S.O.D. No. 4; Seair Seaplanes Ltd. v. Bhangal, 2009 LNOHSTC 24; Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013 ONCA 75, 114 O.R. (3d) 321; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226.
By Abella J. (dissenting)
Public Service Alliance of Canada v. Canada (Attorney General), 2015 FCA 273, [2016] 3 F.C.R. 33; Atomic Energy of Canada Ltd., 2013 OHSTC 21; Aviation General Partner Inc. v. Jainudeen, 2013 OHSTC 32; Laroche v. Canada Border Services Agency, 2010 OHSTC 12; Canada (Public Works and Government Services) (Re), 2009 LNOHSTC 35; Morrison v. Canada Post Corp., 2009 LNOHSTC 32; Ontario (Ministry of Labour) v. United Independent Operators Ltd., 2011 ONCA 33, 104 O.R. (3d) 1; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Ltd., 2017 ONCA 1006; Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37.
Statutes and Regulations Cited
Budget Implementation Act, 2017, No. 1 , S.C. 2017, c. 20 .
Canada Labour Code , R.S.C. 1985, c. L‑2 , Part II, ss. 122(1), 122.1, 122.2, 124, 125, 125.1, 125.2, 125.3, 126, 127.1, 135, 135.1(1), (14), 140, 145, 146, 146.1, 146.2.
Canada Occupational Health and Safety Regulations, SOR/86‑304, ss. 1.3, 12.1.
Interpretation Act , R.S.C. 1985, c. I‑21, s. 12 .
Occupational Health and Safety Act, R.S.N.L. 1990, c. O‑3, s. 2(n).
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 1(1) “workplace”.
Occupational Health and Safety Act, R.S.P.E.I. 1988, c. O‑1.01, s. 1(y).
Occupational Health and Safety Act, S.A. 2017, c. O‑2.1, s. 1(bbb) “work site”.
Saskatchewan Employment Act, S.S. 2013, c. S‑15.1, s. 3‑1(1)(hh).
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 136, No. 71, 2nd Sess., 36th Parl., March 24, 2000, at pp. 5207‑8.
Evans, John M. “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101.
Facey, Marcia, Ellen MacEachen, Anil Verma, and Kathy Morales. “The everyday functioning of joint health and safety committees in unionized workplaces: a labour perspective” (2017), 15 Policy and Practice in Health and Safety 160.
Nova Scotia. The Westray Story: A Predictable Path to Disaster — Report of the Westray Mine Public Inquiry, Halifax, 1997.
O’Grady, John. “Joint Health and Safety Committees: Finding a Balance”, in Terrence Sullivan, ed., Injury and the New World of Work. Vancouver: UBC Press, 2000, 162.
Ontario. Report of the Royal Commission on the Health and Safety of Workers in Mines. Toronto: Ministry of the Attorney General, 1976.
Sharpe, Robert J. Good Judgment: Making Judicial Decisions, Toronto: University of Toronto Press, 2018.
Tucker, Eric. “Diverging Trends in Worker Health and Safety Protection and Participation in Canada, 1985‑2000” (2003), 58 I.R. 395.
APPEAL from a judgment of the Federal Court of Appeal (Nadon, Near and Rennie JJ.A.), 2017 FCA 153, [2017] F.C.J. No. 708 (QL), 2017 CarswellNat 3271 (WL Can.), setting aside a decision of Gleeson J., 2016 FC 252, [2016] F.C.J. No. 272 (QL), 2016 CarswellNat 620 (WL Can.), dismissing an application for judicial review of an appeals officer’s decision, 2014 OHSTC 22, 2014 LNOHSTC 22 (QL), 2014 CarswellNat 8704 (WL Can.). Appeal allowed, Abella and Martin JJ. dissenting.
Sheila Block, John Terry and Jonathan Silver, for the appellant.
Paul J.J. Cavalluzzo and Adrienne Telford, for the respondent.
Catherine Lawrence and Zoe Oxaal, for the intervener the Attorney General of Canada.
Michael A. Hines, Lauri Reesor and Gregory Power, for the interveners DHL Express (Canada), Ltd., the Federal Express Canada Corporation, Purolator Inc., TFI International Inc. and United Parcel Service Canada Ltd.
John Bartolomeo, Jennifer Chan and Doug Letto, for the intervener the Workers’ Health and Safety Legal Clinic.
Christopher Pigott and Rachel Younan, for the intervener FETCO Inc. (Federally Regulated Employers — Transportation and Communications).
Peter Engelmann and Colleen Bauman, for the interveners the Canadian Union of Public Employees and the Professional Institute of the Public Service of Canada.
Brian Smeenk, for the intervener Rogers Communications Inc.
Maryse Tremblay, for the interveners the Canadian Broadcasting Corporation, Bell Canada, Bell Technical Solutions Inc. and Bell Media Inc.
Stéphane Fillion and Michael Adams, for the interveners the Maritime Employers Association, the Halifax Employers Association and the British Columbia Maritime Employers Association.
Craig D. Bavis and Jitesh Mistry, for the interveners the International Longshore and Warehouse Union Canada, the International Longshoremen’s Association, Locals 269, 1341, 1657 and 1825 and the Canadian Union of Public Employees, Local 375.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ. was delivered by
[1] Rowe J. — This appeal concerns an application for judicial review of a decision by the Occupational Health and Safety Tribunal Canada (“OHSTC”). The administrative decision maker was tasked with interpreting a provision of the Canada Labour Code , R.S.C. 1985, c. L‑2 (“Code ”), to determine whether the employer, Canada Post Corporation (“Canada Post”), complied with its work place health and safety obligations. He determined that Canada Post was not in contravention of its work place inspection obligation under the Code . The application for judicial review was dismissed at the Federal Court, and allowed on appeal.
[2] The appeal before this Court provides an opportunity to apply the framework for judicial review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. The standard of review is reasonableness. This Court’s role is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints. For the reasons that follow, I find that the decision of the OHSTC is reasonable and would therefore allow the appeal with costs throughout.
I. Facts
[3] The appellant, Canada Post, is a Crown corporation that provides postal services throughout Canada. The respondent, the Canadian Union of Postal Workers (“Union”), is a certified bargaining agent that represents employees of the appellant, including letter carriers. As a federally‑regulated employer, Canada Post must abide by certain health and safety obligations set out in Part II of the Code . The issue in this appeal is whether the interpretation of one of these obligations by a statutory delegate was reasonable. In my view, it was.
[4] The facts are not in dispute. In August 2012, a representative of the Union who sat on the Local Joint Health and Safety Committee (“Committee”) at the Burlington Depot, in Ontario, filed a complaint with Human Resources and Skills Development Canada. The complaint claimed that the Committee failed to comply with mandatory health and safety obligations in the Code by limiting its work place inspections to the Burlington Depot. The complaint stated that the safety inspections should include letter carrier routes and locations where mail is delivered (“points of call”), and not just the Burlington Depot building. While the complaint related only to the 73 letter carrier routes in Burlington, the disposition could affect operations throughout the country. Canada Post estimated that letter carriers travel 72 million linear kilometres delivering mail to 8.7 million points of call.
[5] Following the complaint, a Health and Safety Officer (“HSO”) attended the facility and upon investigation, found that Canada Post failed to comply with s. 125(1) (z.12) of the Code , which provides that the employer must ensure that every part of the work place is inspected at least once a year. The HSO also found Canada Post in contravention of three other obligations in Part II of the Code , none of which are at issue in this appeal. Canada Post appealed the HSO’s direction to the OHSTC. The Appeals Officer rescinded the contravention relating to work place inspections. Contrary to the HSO, the Appeals Officer determined that this obligation applied only to the parts of the work place over which the employer had control; this did not include letter carrier routes and points of call. The Union sought judicial review of the Appeals Officer’s decision to rescind the contravention of s. 125(1) (z.12).
II. Issue
[6] The Appeals Officer concluded that s. 125(1) (z.12) applied only to parts of the work place over which the employer had control. The sole issue before this Court is whether the Appeals Officer’s interpretation of s. 125(1) (z.12) of the Code was reasonable.
III. Occupational Health and Safety Scheme
[7] The Code generally applies in respect of employment on or in connection with the operation of any federal work, undertaking or business. The Code is comprised of three parts. Part I deals with industrial relations. Part II deals with occupational health and safety, and is the Part relevant to this appeal. Part III deals with minimum labour standards, including work hours, wages, vacations and holidays.
[8] The purpose of Part II is set out in s. 122.1: “. . . to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies”. Part II of the Code imposes duties on employers and employees.
[9] There is a general duty on every federally‑regulated employer to “ensure that the health and safety at work of every person employed by the employer is protected” (s. 124). The Code sets out specific health and safety obligations incumbent on employers in ss. 125 to 125.3. This appeal concerns one of the specific obligations created by s. 125(1) (z.12), which reads as follows:
Specific duties of employer
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;
Employees also have duties under the Code . Section 126 sets out employees’ duties in respect of health and safety. The Canada Occupational Health and Safety Regulations, SOR/86‑304 (“Regulations”), are prescribed for the purposes of the provisions dealing with the duties of employers and employees (ss. 125, 125.1, 125.2 and 126) (see s. 1.3 of the Regulations).
[10] For larger work places (with twenty or more employees), the scheme places the primary responsibility for identifying and resolving health and safety hazards with joint work place committees composed of employers and employees. Section 135(1) of the Code provides for the mandatory establishment of a work place health and safety committee for each “work place controlled by the employer at which twenty or more employees are normally employed”. The committee must be comprised of at least two people, and at least half of the members must be employees who “do not exercise managerial functions”, and, subject to any regulations, have been selected by the employees or, where, applicable, the trade union in consultation with employees not so represented (Code, s. 135.1(1) ).
[11] The Code sets out the duties of the committee in s. 135(7), one of which is to inspect the work place. The provision states that the committee “shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year” (s. 135(7)(k)). The committee’s work place inspection obligation corresponds with the employer’s duty to ensure work place inspection set out in s. 125(1) (z.12).
[12] Should a disagreement between employees and their employer arise in relation to any of these obligations, the parties must first attempt to resolve the issue through an internal complaint resolution process (s. 127.1). If this fails, a delegate of the Minister — at the relevant time, this delegate was the HSO — shall investigate and may issue directions to resolve the matter (ss. 127.1, 140 and 145).
[13] The direction of the Minister’s delegate can be challenged before an appeals officer (s. 146). The appeals officers are grouped under the OHSTC. The powers of an appeals officer, as well as procedural requirements for proceedings before an appeals officer, are outlined in ss. 146.1 and 146.2. These include a requirement to provide written reasons (s. 146.1(2)). (I note that, since the hearing of this appeal, some of these provisions were modified by the Budget Implementation Act, 2017, No. 1 , S.C. 2017, c. 20 .)
[14] Canada Post and the Union have established protocols to promote work place health and safety. For example, the Workplace Hazards Prevention Program (“WHPP”) provides an “exemplary . . . protocol for identifying and reporting hazards that are encountered at the points of call” (2014 OHSTC 22, at para. 100 (CanLII)). Another example is Canada Post Policy 1202.05, Hazards and Impediments to Delivery on Route, which outlines the steps that letter carriers, supervisors and superintendents must take to “identify and correct hazards and impediments to delivery”.
[15] While employer policies fall outside the statutory scheme, it is useful to illustrate how Canada Post seeks to fulfil the purposes of the Code in practice. The occupational health and safety scheme created by the Code , the Regulations, and policies specific to the employer operate together as a net of overlapping obligations designed to protect the health and safety of federally‑regulated workers. As the Appeals Officer noted, the WHPP demonstrates “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” (para. 100).
IV. Decisions Below
A. Occupational Health and Safety Tribunal Canada, 2014 OHSTC 22
[16] In his reasons, the Appeals Officer gave a lengthy description of the parties’ submissions before setting out his analysis of the four contraventions cited by the HSO. The parts of his reasons that deal with the contravention to s. 125(1) (z.12) are relevant to this appeal.
[17] Based on the wording of s. 125(1) , the Appeals Officer first determined that the obligations arising from this subsection applied only in respect of a work place (paras. 87‑88 (CanLII)). After considering the definition of “work place” at s. 122(1), as well as the remedial purpose of health and safety legislation and relevant jurisprudence, he concluded that “work place” had to be interpreted broadly so as to include “all places where an employee works, whether or not they are under the employers’ control” (para. 92). For letter carriers, this included places outside the Burlington Depot, such as points of call and lines of route.
[18] The Appeals Officer then turned to the scope of the obligations under s. 125(1) . He concluded that the provision dealt with two situations: when the employer controls both the work place and the activity; and when the employer controls the activity, but not the work place (para. 93). In his view, a close reading of the obligations created by s. 125(1) reveals that some obligations apply to both situations while others can only apply where the employer has control over the work place.
[19] The Appeals Officer concluded that s. 125(1) (z.12) can only apply to work places over which the employer has control “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” (para. 96). Since Canada Post has no control over lines of route or points of call, he determined that the obligation to ensure that the work place was inspected by the Committee could not apply to these locations: “I fail to see how an employer can effectively ensure that an inspection be carried out in accordance with (z.12) at a work place over which it has no control” (para. 99). Finally, he noted that the WHPP already had in place procedures for identifying and reporting hazards encountered by letter carriers. This program shows how the Code and its Regulations can be implemented to protect the health and safety of workers in different settings.
B. Federal Court, 2016 FC 252
[20] Gleeson J. applied a reasonableness standard and dismissed the application for judicial review. In his view, the Appeals Officer applied the proper method of statutory interpretation as laid out by this Court in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. He found that the Appeals Officer’s interpretation of the provision was “based on a harmonious reading of the words in their context” (para. 52 (CanLII)) and the purpose of s. 125(1) (z.12), and therefore it was within the range of reasonable outcomes. Gleeson J. further held that there were no internal inconsistencies in the reasons (para. 55) and that the outcome was consistent with the purpose of the scheme: to protect the health and safety of employees (para. 56).
C. Federal Court of Appeal, 2017 FCA 153
[21] Nadon J.A. allowed the appeal and reinstated the HSO’s direction. In his view, s. 125(1) is clear and unambiguous: the employer must fulfil every obligation enumerated by the provision if it controls either the work place or the work activity (para. 48 (CanLII)). The interpretation put forth by the Appeals Officer was therefore unreasonable because it constituted a redrafting of the provision, which would limit the obligations of employers with regard to work place health and safety. Furthermore, Nadon J.A. held that the Appeals Officer’s finding that Canada Post could not fulfil the obligation of s. 125(1) (z.12) since it did not control the work place was unreasonable. This was based on the record, which showed that Canada Post was able to identify and address safety hazards on routes and points of call through its various policies and prevention programs (paras. 64‑65).
[22] Rennie J.A. concurred with Nadon J.A. in the result but set out a different approach. Based on the words “to the extent that” in s. 125(1) , he held that the question was not whether an obligation existed, but rather what was the extent of that obligation based on the level of control the employer exerted over the work activity (paras. 77‑ 78). Since it was not contested that Canada Post controlled the work activity of letter carriers, Rennie J.A. agreed with Nadon J.A that the Appeals Officer’s decision was unreasonable (para. 81).
[23] In dissent, Near J.A. held that it was reasonable for the Appeals Officer to determine that some obligations under s. 125(1) — including para. (z.12) — apply only if the employer has control over the work place (paras. 17‑18). In his view, this interpretation was not inconsistent with the fact that Canada Post can identify and resolve hazards at points of call through its health and safety policies. Near J.A. pointed out that the various obligations under s. 125(1) are of different natures. If the inspection obligation applies to the letter carrier routes and points of call, Canada Post would not merely be obligated to attempt to identify and fix potential hazards, it would be obligated to ensure that such hazards are identified and fixed, including those on private property (para. 20). He concluded that the Appeals Officer’s interpretation was consistent with the purpose of the Code without extending the employer’s obligation beyond what is reasonable and logical (para. 21).
V. Analysis
A. The New Administrative Law Framework
[24] This appeal was heard shortly after the Vavilov and Bell/NFL appeals (Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 653), in which the Court reconsidered and clarif