Canadian Pacific Railway Company v. Woollard

Canadian Pacific Railway Company v. Woollard
Court (s) Database
Federal Court Decisions
Date
2006-11-06
Neutral citation
2006 FC 1332
File numbers
T-2304-05
Decision Content
Date: 20061106
Docket: T-2304-05
Citation: 2006 FC 1332
Ottawa, Ontario, November 6, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Applicant
and
ALLAN WOOLLARD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application is for judicial review pursuant to section 18 of the Federal Courts Act, R.S.C. 1985, c F-7 (the Act) of a decision by Appeals Officer, Douglas Malanka, of the Canada Appeals Office on Occupational Health and Safety. Dated November 30, 2005, the decision varies the direction issued by Health and Safety Officer (H.S.O.), Rod Noel, by finding that the Applicant contravened paragraph 125.1(i) [should be 125(1)(i)] of the Canada Labour Code, Part II, R.S., 1985, c. L-2 (the Code), and paragraph 9.44(1)(b), as well as subsections 9.44(2) and (3), and section 10.4 of the Canada Occupational Health and Safety Regulations, SOR/86-304 (the Regulations).
ISSUES
[2] The parties raise several issues. While I have taken each under careful consideration, I formulate the issues as follows:
1) Did the Appeals Officer err in law with respect to his statutory interpretation of the provisions of paragraph 9.44(1)(b) of the Regulations?
2) Were the Appeals Officer’s findings made in a perverse or capricious manner without regard to the evidence?
3) Did the Appeals Officer breach the rules of natural justice or procedural fairness by failing to give the Applicant an opportunity to make submissions and be heard on the concerns regarding the hazard investigation as stipulated in section 10.4 of the Regulations?
[3] For the following reasons, the present application shall be allowed.
BACKGROUND
[4] The Applicant provides freight transportation services throughout Canada and in the United States. As part of its operations, the Applicant employs a number of people, including machine operators on the surfacing crews who like the Respondent work outdoors, maintaining its railway tracks. Members of the surfacing crews operate various diesel-powered machines and are responsible for operating, refuelling and maintaining the machines.
[5] In carrying out these duties, it is not uncommon for such employees to come into contact with animal carcasses and human waste along the railway tracks. But even more significantly, the workers’ clothes regularly get wet and contaminated by hazardous substances, including diesel fuel, lubricating grease, ethylene glycol antifreeze and hydraulic oils. The material safety data sheets (MSDS) on these products indicate the following:
1. Diesel Fuel
· Avoid prolonged or repeated skin contact … ;
· Remove contaminated clothing – launder before reuse;
· Do not breathe gas, vapour, spray;
· Practice good personal hygiene;
· Launder work clothes frequently;
2. Hydraulic Oil (Hydrex XV)
· Avoid inhalation and skin contact;
· Launder work clothes frequently
3. Antifreeze (ethylene glycol)
· Contact can cause slight irritation of skin, eyes and respiratory track;
· Remove contaminated clothing – launder before reuse
4. Lubricating Oil (Ardee 32)
· Similar to above
5. Lubricating Grease
· Similar to above
[6] Both parties acknowledge that the Applicant provides the surface crews with various types of disposable coveralls to protect their clothing. However, it is alleged by the Respondent that these protective gear have been less than adequate, in that they are usually ill fitted, tear easily and until recently, are rarely oil resistant.
[7] It is acknowledged that the Applicant provided its surfacing crews with a separate room for changing and storing such soiled work clothing. However, when the surfacing crews work in small numbers in remote regions and are billeted in hotels and/or motels, the Applicant no longer provides a separate room for storing their soiled and contaminated work clothing. Yet their work and its associated hazards remain the same.
[8] As a result, such crews are systematically required to leave the work site without changing out of their work clothes. They have no option but to return to their hotel rooms where they change, shower, dry and store their wet and contaminated clothing in the same rooms in which they must sleep, at times with two workers per room; for periods ranging from one day to a week or more.
[9] That is why on November 21, 2002, the Respondent complained to the H.S.O. that the Applicant was no longer providing a separate room for surfacing crews billeted in hotels and/or motels. The Respondent believed this to be a health hazard in that the odours from his wet or contaminated work clothes filled the room and made him ill at night, especially when the clothing had to be dried on the heater in the hotel or motel room. Moreover, it is also noted that while the Applicant provides surfacing crew workers with an allowance for laundry services, the hotels and/motels do not allow the workers to use their facilities to launder these working clothes.
[10] Following an investigation on April 9 and 16, 2003, the H.S.O. concluded in a direction dated June 12, 2003, that the Applicant had contravened the following provisions of the Code and the Regulations:
1) Canada Labour Code, Part II paragraph 125.1(1)(e) [should be 125.1(e)] and Canada Occupational Health and Safety Regulations paragraph 10.28(b) and subsection 10.34(1).
The employer has failed to make material safety data sheets readily available to employees who operate and maintain maintenance of way track clearing equipment. Some of the hazardous substances and/or controlled products that these employees handle or are exposed to are diesel fuel, ethylene glycol antifreeze, and hydraulic oils.
2) Canada Labour Code, Part II paragraph 125(1)(i) and Canada Occupational Health and Safety Regulations sub-sections 9.44(1) and (3).
Employees who work on and maintain maintenance of way track clearing equipment are regularly required to work outside in inclement weather where clothing becomes wet. During the operation and maintenance of equipment clothing is frequently contaminated by hazardous products such as diesel fuel, lubricating grease, antifreeze and hydraulic oils. The employer provides hotel rooms housing two employees per room for periods of several days. Employees are required to return to those rooms directly from the workplace, while wearing the wet or contaminated clothing. The employer has failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing.
[11] The Applicant was therefore directed pursuant to paragraph 145(1)(a) of the Code, Part II, to terminate the contravention(s) no later than June 27, 2003, and to take steps before this date, to ensure that the contraventions do not continue to re-occur, pursuant to paragraph 145(1)(b) of the Code.
[12] On July 9, 2003, the Applicant appealed the H.S.O.’s directions pursuant to subsection 146(1) of the Code requesting that only the second item of the direction be rescinded. On November 30, 2005, the Appeals Officer declined to rescind the H.S.O.’s direction and instead varied these directions by adding another contravention of the Regulations. It is this decision, which lies at the heart of the present application for judicial review.
DECISION UNDER REVIEW
[13] The Appeals Officer conducted a hearing on January 19 and 20, 2005, and examined the written submissions concerning the Applicant’s appeal.
[14] The Appeals Officer found that unlike the findings of the H.S.O., the Regulations did not call for a separate change room but rather only a change room. Also, the Appeals Officer found that the H.S.O. was not in a position to independently establish that the quantities of product present on the employees’ work clothing were sufficient to render the clothing contaminated or unfit to wear. While the H.S.O. used the MSDS sheets to confirm that diesel fuel, lubricating grease, antifreeze and hydraulic oils met the definition of a hazardous substance, he did not conduct any tests or require the Applicant to provide him a copy of a proper hazard assessment completed in accordance with subsection 10.4(1) of the Regulations and the definition of a hazardous substance in subsection 122(1) of the Code.
[15] Notwithstanding these shortcomings in the H.S.O.’s direction, the Appeals Officer was satisfied that the evidence confirmed the following:
· employees were regularly engaged in work that brought their clothing into contact with hazardous substances, which included diesel fuel, lubricating grease, antifreeze and hydraulic oils;
· the disposable overalls provided to employees by CPR were inappropriate because they were not sufficiently tear resistant under all aspects of the work and they were not impermeable to the oils used by employees;
· CPR failed to conduct a proper hazard assessment in accordance with subsection 10.4(1) of the COHSR (Regulations) and the definition of a hazardous substance given in section 122(1) of the Code; and
· CPR’s past practice was to provide a separate room for changing and storing work clothing that was wet or contaminated by a hazardous substance.
[16] Consequently, the Appeals Officer gave the following direction to the Employer under paragraph 145(1)(b) and subsection 145(5):
The …Appeals Officer is of the opinion that the following provision is being contravened:
Paragraph 125.1(i) [should be 125(1)(i), my correction] of the Canada Labour Code, Part II, and section 10.4 of the Canada Occupational Health and Safety Regulations:
The employer has failed to appoint a qualified person to carry out the hazard investigation required by section 10.4 of the Canada Occupational Health and Safety Regulations to determine his obligation in respect of paragraph 9.44 (1) (b) and subsections 9.44 (2) and (3) of the same Regulations in respect of the hazardous substances used and handled by track maintenance machine operators, which include diesel fuel, ethylene glycol antifreeze, hydraulic oils, and greases, and in respect of feces and animal carcasses that may be found on the track bed.
RELEVANT LEGISLATION
[17] The statutory source of this contested decision is found in paragraph 145(1)(b) of the Code, which states as follows:
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
. . .
(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.
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 :
. . .
b) de prendre, dans les délais précisés, les mesures qu’il précise pour empêcher la continuation de la contravention ou sa répétition.
[18] The H.S.O. found that the Applicant failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing, in violation of paragraph 125(1)(i) of the Code as well as paragraph 9.44(1)(b) and subsections 9.44(2) and (3) of the Regulations. The relevant sections state as follows:
Code
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,
. . .
(i) provide prescribed sanitary and personal facilities;
Regulations
Clothing Storage
9.44 (1) A change room shall be provided by the employer where
. . .
(b) an employee is regularly engaged in work in which his work clothing becomes wet or contaminated by a hazardous substance.
(2) Where wet or contaminated work clothing referred to in paragraph (1)(b) is changed, it shall be stored in such a manner that it does not come in contact with clothing that is not wet or contaminated.
(3) No employee shall leave the work place wearing clothing contaminated by a hazardous substance.
Code
Obligations spécifiques
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 :
. . .
i) de fournir les installations sanitaires et personnelles réglementaires;
Règlements
Rangement des vêtements
9.44 (1) Un vestiaire doit être fourni par l’employeur dans les cas suivants :
. . .
b) lorsqu’un employé exécute habituellement un travail au cours duquel sa tenue de travail devient mouillée ou contaminée par une substance dangereuse.
(2) Les vêtements de travail mouillés ou contaminés visés à l’alinéa (1)b) doivent, une fois enlevés, être conservés à l’écart des autres.
(3) Il est interdit à un employé de quitter les lieux de travail avec des vêtements contaminés par une substance dangereuse.
[19] Pursuant to paragraph 145(1)(b) and subsection 145(5), the Appeals Officer found that the Applicant had contravened paragraph 125.1(i) [should be 125(1)(i)] cited above, as well as section 10.4 of the Regulations. The Appeals Officer also made reference to subsection 122(1) of the Code. These state as follows:
Regulations
Hazard Investigation
10.4 (1) If there is a likelihood that the health or safety of an employee in a work place is or may be endangered by exposure to a hazardous substance, the employer shall, without delay,
(a) appoint a qualified person to carry out an investigation in that regard; and
(b) for the purposes of providing for the participation of the work place committee or the health and safety representative in the investigation, notify either of the proposed investigation and of the name of the qualified person appointed to carry out that investigation.
. . .
10.5 On completion of an investigation referred to in subsection 10.4(1) and after consultation with the work place committee or the health and safety representative,
(a) the qualified person shall set out in a written report signed by the qualified person
(i) the qualified person’s observations respecting the criteria considered in accordance with subsection 10.4(2), and
(ii) the qualified person’s recommendations respecting the manner of compliance with sections 10.7 to 10.26, including recommendations respecting sampling and testing methods; and
(b) the employer shall develop and maintain a written procedure for the control of the concentration or level of the hazardous substance in the work place.
Code
Interpretation
122. (1) In this Part,
“hazardous substance” includes a controlled product and a chemical, biological or physical agent that, by reason of a property that the agent possesses, is hazardous to the safety or health of a person exposed to it;
Règlements
Enquête sur les risques
10.4 (1) Lorsque la santé ou la sécurité d’un employé risque d’être compromise par l’exposition à une substance dangereuse présente dans le lieu de travail, l’employeur doit sans délai :
a) nommer une personne qualifiée pour faire enquête sur la situation;
b) à des fins de participation à l’enquête, aviser le comité local ou le représentant qu’il y aura enquête et lui communiquer le nom de la personne qualifiée nommée pour faire enquête.
. . .
10.5 Après l’enquête visée au paragraphe 10.4(1) et après avoir consulté le comité local ou le représentant :
a) la personne qualifiée doit rédiger et signer un rapport contenant :
(i) ses observations concernant les facteurs pris en compte conformément au paragraphe 10.4(2),
(ii) ses recommandations concernant les mesures à observer pour assurer le respect des articles 10.7 à 10.26, y compris ses recommandations concernant les méthodes d’échantillonnage et d’analyse;
b) l’employeur doit établir par écrit et appliquer une marche à suivre pour contrôler la concentration ou le niveau de la substance dangereuse présente dans le lieu de travail.
Code
Définitions et interprétation
122. (1) Les définitions qui suivent s’appliquent à la présente partie.
« substance dangereuse » Sont assimilés à des substances dangereuses les agents chimiques, biologiques ou physiques dont une propriété présente un risque pour la santé ou la sécurité de quiconque y est exposé, ainsi que les produits contrôlés.
[20] The duty of the Appeals Officer is set out in section 146.2 of the Code. The relevant portions state as follows:
Powers
146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may
(h) determine the procedure to be followed, but the officer shall give an opportunity to the parties to present evidence and make submissions to the officer, and shall consider the information relating to the matter;
Pouvoirs
146.2 Dans le cadre de la procédure prévue au paragraphe 146.1(1), l’agent d’appel peut :
h) fixer lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie la possibilité de lui présenter des éléments de preuve et des observations, d’une part, et de tenir compte de l’information contenue dans le dossier, d’autre part;
ANALYSIS
Did the Appeals Officer err in law with respect to his statutory interpretation of the provisions of paragraph 9.44(1)(b) of the Regulations?
Standard of review
[21] This issue deals specifically with the statutory interpretation of the words “regularly” and “contaminated” as used in paragraph 9.44(1)(b) of the Regulations. Statutory interpretation is a question of law. It is well established jurisprudence that the standard of review applicable to questions of law is correctness (Canada (Attorney General) v. Fletcher, [2003] 2 F.C. 475 (C.A.)).
Statutory interpretation
[22] The word “regularly,” as in “regularly engaged in work,” is not defined in the statute. Similarly, the statute does not provide a definition for the word “contaminated.” Where a statute is silent with respect to the meaning of a word, section 12 of the Interpretation Act, R.S., 1985, c. I-21, s. 12 provides that all statutes are remedial and as such must be given “a fair, large and liberal construction and interpretation as best ensures the attainments of the Act's objectives”. The words chosen by Parliament must be consistent with the apparent objectives of the provision in question.
[23] It is therefore necessary to look to the background and purpose of the regulation in order to determine the meaning of these words. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. No. 27, Mr. Justice Iacobucci held at paragraph 21:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[24] The word “regularly” appears numerous times in the Regulations and it is not defined in any of these instances, which can be found as follows:
9.23 (1) A shower room with a door fitted on the inside with a locking device and at least one shower head for every 10 employees or portion of that number shall be provided for employees who regularly perform strenuous physical work in a high temperature or high humidity or whose bodies may be contaminated by a hazardous substance.
9.44 (1) A change room shall be provided by the employer where
. . .
(b) an employee is regularly engaged in work in which his work clothing becomes wet or contaminated by a hazardous substance.
12.13 Where an employee is regularly exposed to contact with moving vehicles during his work, he shall
14.9 (1) Motorized materials handling equipment that is regularly used outdoors shall be fitted with a roof or other structure that will protect the operator from exposure to any weather condition that is likely to be hazardous to the operator’s health or safety.
14.45 (1) In any passageway that is regularly traveled by motorized or manual materials handling equipment, the employer shall ensure that . . .
16.5 (4) The employer shall inspect every first aid station regularly, at least monthly, and shall ensure that its contents are maintained in a clean, dry and serviceable condition.
19.2 The employer shall
. . .
(c) review the time frame of the implementation plan regularly and, as necessary, revise it.
9.23 (1) Une salle de douches fermée par une porte munie d’un dispositif de verrouillage par l’intérieur et équipée d’au moins une pomme de douche par groupe de 10 employés ou moins doit être fournie aux employés qui exécutent habituellement un travail physiquement ardu dans des conditions de chaleur ou d’humidité élevée, ou qui risquent d’être contaminés par une substance dangereuse.
9.44 (1) Un vestiaire doit être fourni par l’employeur dans les cas suivants :
. . .
b) lorsqu’un employé exécute habituellement un travail au cours duquel sa tenue de travail devient mouillée ou contaminée par une substance dangereuse.
12.13 L’employé qui, pendant son travail, est habituellement exposé au risque de heurt avec des véhicules en mouvement doit être protégé par l’un des dispositifs suivants, nettement visible dans toutes les conditions d’utilisation :
14.9 (1) L’appareil de manutention motorisé qui est utilisé régulièrement à l’extérieur doit être muni d’un toit ou d’une autre structure pour protéger l’opérateur des intempéries qui présentent un risque pour sa santé ou sa sécurité.
14.45 (1) L’employeur doit veiller à ce que tout passage habituellement utilisé par les appareils de manutention motorisés ou manuels ait : . . .
16.5 (4) L’employeur doit procéder à l’inspection de tout poste de secours au moins une fois par mois et veiller à ce que le contenu de chacun soit tenu propre, sec et en état d’utilisation.
19.2 L’employeur doit :
. . .
c) vérifier à intervalles réguliers l’échéancier prévu au plan de mise en oeuvre et, au besoin, le modifier.
[emphasis added]
[25] It is my view that the decision maker was correct in his interpretation of the word “regularly” in that he rejected the restrictive interpretation proposed by the Applicant and adopted a fair, large and liberal interpretation that would be in keeping with the objectives of the Code. The Appeals Officer noted that the Applicant relied on the analogy made by H.S.O. Chemiliuk, who stated as follows (para. 69 of the Appeals Officer’s decision):
As an example, a person who works in a wash bay area where his job entails the use of water pressure washing equipment is likely to become wet on a regular basis. In your example the wet clothing referred to would be as a result of being caught in a rain or snow storm. As we know weather cannot be predicted and rain and snow storms are intermittent in nature. The employees you refer to may not be exposed to the threat of wet clothing for extended periods of time and not on a regular basis.
[26] In my view, the Appeals Officer was correct to reject this interpretation of the word. For to follow this inapt analogy to its logical conclusion, it would imply that employees would be required to provide its employees with rain protection gear, for instance. It is unlikely that Parliament would have intended such a result. Rather, the statute clearly refers to hazardous substances and the likelihood of workers regularly getting their clothes wet and contaminated by these hazardous fluids and not by rain. These hazardous fuels include diesel fuel, lubricating grease, antifreeze and/or hydraulic oils. Moreover, the situation of the workers in question is far removed from that of a person working in a car wash. Therefore, the Appeals Officer was correct to reject this narrow interpretation of the word “regularly”.
[27] I now turn to the second word, the interpretation of which is in dispute. Like “regularly”, there is no definition in the Regulations of the word “contaminated.” The word appears in different places in the Regulations, none of which provides a definition of the word itself. It can be found as follows:
9.23 (1) A shower room with a door fitted on the inside with a locking device and at least one shower head for every 10 employees or portion of that number shall be provided for employees who regularly perform strenuous physical work in a high temperature or high humidity or whose bodies may be contaminated by a hazardous substance.
9.38 No person shall eat, prepare or store food
(a) in a place where a hazardous substance may contaminate food, dishes or utensils;
. . .
(c) in any other place where food is likely to be contaminated.
9.44 (1) A change room shall be provided by the employer where
. . .
(b) an employee is regularly engaged in work in which his work clothing becomes wet or contaminated by a hazardous substance.
(2) Where wet or contaminated work clothing referred to in paragraph (1)(b) is changed, it shall be stored in such a manner that it does not come in contact with clothing that is not wet or contaminated.
(3) No employee shall leave the work place wearing clothing contaminated by a hazardous substance.
(4) Every employer shall supply drying and cleaning facilities for the purpose of drying or cleaning wet or contaminated clothing referred to in paragraph (1)(b).
10.22 (1) Compressed air shall not be used for cleaning clothing contaminated with:
. . .
18.1 The definitions in this section apply in this Part.
“contaminated environment” means
. . .
18.4 (1) Every employer shall establish written procedures and requirements that are to be followed and met by employees involved in diving operations and that specify which of those procedures and requirements
. . .
(b) are to be implemented or met to counter any known hazards, including those arising out of contaminated or potentially contaminated environments, low visibility, hazardous water flow conditions and entrapment; and
[…]
18.9 (1) Every employer shall ensure that, for each dive, the dive team develops a dive plan that identifies the surface and underwater conditions and hazards likely to be encountered, including those arising from contaminated environments and underwater pressure differentials, and that specifies
9.23 (1) Une salle de douches fermée par une porte munie d’un dispositif de verrouillage par l’intérieur et équipée d’au moins une pomme de douche par groupe de 10 employés ou moins doit être fournie aux employés qui exécutent habituellement un travail physiquement ardu dans des conditions de chaleur ou d’humidité élevée, ou qui risquent d’être contaminés par une substance dangereuse.
9.38 Il est interdit de manger, de préparer ou d’entreposer des aliments :
a) dans un endroit où il existe une substance dangereuse susceptible de contaminer les aliments, la vaisselle ou les ustensiles;
. . .
c) dans tout endroit où les aliments risquent d’être contaminés.
9.44 (1) Un vestiaire doit être fourni par l’employeur dans les cas suivants :
. . .
b) lorsqu’un employé exécute habituellement un travail au cours duquel sa tenue de travail devient mouillée ou contaminée par une substance dangereuse.
(2) Les vêtements de travail mouillés ou contaminés visés à l’alinéa (1)b) doivent, une fois enlevés, être conservés à l’écart des autres.
(3) Il est interdit à un employé de quitter les lieux de travail avec des vêtements contaminés par une substance dangereuse.
(4) L’employeur doit fournir des installations pour sécher et laver les vêtements mouillés ou contaminés visés à l’alinéa (1)b).
10.22 (1) L’air comprimé ne peut être utilisé pour nettoyer les vêtements contaminés :
….
18.1 Les définitions qui suivent s’appliquent à la présente partie.
« environnement contaminé » Selon le cas :
18.4 (1) L’employeur établit par écrit les méthodes et les exigences que doivent observer les employés affectés aux activités de plongée et précise :
. . .
b) lesquelles doivent être appliquées ou respectées afin de contrer les dangers connus, y compris ceux associés aux environnements contaminés ou potentiellement contaminés, à une faible visibilité, aux courants dangereux et aux situations d’entrave;
[…]
18.9 (1) L’employeur veille à ce que l’équipe de plongée établisse un plan de plongée pour chaque plongée. Ce plan énonce les conditions et les risques en surface et sous l’eau susceptibles de survenir, y compris ceux reliés aux environnements contaminés et aux différences de pression sous l’eau, et précise :
[emphasis added]
[28] Relying on the ordinary dictionary meaning of the word, I find nothing incorrect in the approach adopted by the Appeals Officer where he relied on the Merriam Webster’s Collegiate Dictionary to interpret the meaning of the word contaminated as used in the Regulations. In addition, the Appeals Officer did not err in law in ascribing a liberal and broad meaning in keeping with the objectives of Parliament when it adopted this legislation. To do otherwise as was urged by the Applicant who advocated the adoption of a technical definition, would be to limit the intentions of Parliament to prevent accidents and injury to health in the workplace.
[29] To conclude on this first issue, the Appeals Officer did not commit any legal error in his interpretation of either of these words.
Were the Appeals Officer’s findings made in a perverse or capricious manner without regard to the evidence?
Standard of Review
[30] It is first necessary to determine the applicable standard of review of the Appeal Officer’s decision. An analysis of the four factors of the pragmatic and functional test set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 will determine the standard of review to adopt.
i) Presence of a privative clause or right of appeal
[31] The Code contains a strong privative clause, which suggests deference by the Court. This matter was dealt with by the Federal Court of Appeal in Martin v. Canada (Attorney General), 2005 FCA 156, [2005] F.C.J. No. 752 (F.C.A.) (QL), at paragraphs 16 and 17, where Mr. Justice Rothstein held as follows:
[…] In the case of decisions of appeals officers under the Code, the privative clauses are worded in strong terms:
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.
[…] 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 for a tribunal to follow in respect of the interpretation of its home statute.
(See also Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at para. 19).
ii) Relative expertise
[32] The Code recognizes Health and Safety Officers as specialized decision makers. Appeal Officers likewise now enjoy all the powers of Health and Safety Officers and as such, this Court should not intervene unless the decision can be shown to have been made in a patently unreasonable manner. In this regard, my colleague, Mr. Justice Rouleau said it best in Vancouver Wharves Ltd. v. Canada (Attorney General), [1998] F.C.J. No. 943 (F.C.T.D.) (QL) at paragraph 17:
[…] The Regional Safety Officer is a specialized decision maker and those findings which rest squarely within his expertise are to be given a great deal of deference and should not be interfered with unless they are made in a perverse or capricious manner or without regard to the evidence.
iii) Purpose of the statute
[33] The purpose of the Canada Labour Code is to prevent accidents and injury to health in the workplace. Thus the Code is preventive in nature. That is why this Court must give the broadest interpretation to terms that are consistent with the facts of the case. This is particularly true, where as in this case, the Code is silent on the definition of terms that are substantive issues. This factor however, implies less deference.
iv) Nature of the Question
[34] Where the question is based on purely factual considerations, the Court must accord greater deference with respect to the impugned decision. However, where the issues are of mixed fact and law, deference will be less pronounced. Finally, legal questions would invite the Court’s intervention. It is clear that on this issue, the Appeal Officer based his decision on facts and indeed the lack of facts with respect to his findings on the investigation carried out by the H.S.O.
[35] Applying this pragmatic and functional analysis to the decision under review, the Court adopts the standard of review of patent unreasonableness. Not only is there a strong privative clause, suggesting Parliament’s intent to keep judicial interference at bay, but also the Appeals Officer enjoys statutory sanctioned expertise in the area of occupational health and safety. In addition, the purpose of the Code is preventive and remedial in nature, inviting a liberal judicial approach to a review of the Appeal Officer’s decision. Consequently, unless the findings of the Appeals Officer were made in a perverse or capricious manner without regard to the evidence, this Court will not intervene. In this, I agree with the submissions of counsel for both the Applicant and the Respondent on the issue of standard of review (Martin v. Canada (Attorney General), [2005] 4 F.C.R. 637 (C.A.) at paragraph 18).
[36] In the case at bar, I agree with the Applicant’s submission that the upholding of item 2 of the H.S.O’s direction pursuant to section 9.44 of the Regulations by the Appeals Officer is patently unreasonable for the following reasons: the H.S.O. had stated:
[…] During the operation and maintenance of equipment clothing is frequently contaminated by hazardous products such as diesel fuel, lubricating grease, antifreeze and hydraulic oils. […]
Further on, he had concluded that:
[…] The employer has failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing (decision of the Appeals Officer, Appendix A).
Yet, the Appeals Officer writes at paragraphs 111, 112 and 113 of his decision:
[111] From my examination of paragraph 9.44 (1)(b), I note that this paragraph only requires the employer to provide a change room, as opposed to a separate change room. The term "change room" is defined as follows in Part I, Interpretation, of the COHSR:
1.2 In these Regulations,
…
"change room" means a room that is used by employees to change from their street clothes to their work clothes and from their work clothes to their street clothes, and includes a locker room; (vestiaire)
[112] Similarly, subsection 9.44(2) of the COHSR states that wet or contaminated clothing referred to in paragraph 9.44 (1)(b) must be stored in a manner that prevents it from coming into contact with clothing that is not wet or contaminated. However, this subsection does not specify that a separate storage room must be provided as specified by HSO Noel in his direction.
[113] With regard to the question of whether or not the work clothing of the machine operators was contaminated by a hazardous substance such that paragraph 9.44(1)(b) applies, the facts are that HSO Noel relied on what he observed regarding stains on employee work clothes and what employees told them regarding the work. While he used the MSDS sheets for confirming that diesel fuel, lubricating grease, antifreeze and hydraulic oils met the definition of a hazardous substance, he did not conduct any tests, or require CPR to provide him with a copy of the proper hazard assessment completed in accordance with subsection 10.4(1) of the COHSR and the definition of a hazardous substance in section 122(1) of the Code. Therefore, HSO Noel was not in a position to independently establish that the quantities of product present on the employees work clothing were sufficient to render the clothing contaminated or unfit to wear.
[emphasis added]
Then, he confirms item 2 of the direction issued by H.S.O. Noel (paragraph 121 of the Decision dated November 30, 2005). This is a flagrant contradiction that warrants the intervention of this Court.
Did the Appeals Officer breach the rules of natural justice or procedural fairness by failing to give the Applicant an opportunity to make submissions and be heard on the concerns regarding the hazard investigation as stipulated in section 10.4 of the Regulations?
Standard of Review
[37] While the standard of review of patent unreasonableness applies to the Appeal Officer’s substantive direction, this standard of review does not apply to breaches of the rules of natural justice and questions of procedural fairness. In this regard, I agree with the submissions of counsel for the Applicant on this question when he relies on Mr. Justice Linden’s ruling in Sketchley v. Canada (Attorney General), [2005] F.C.J. No 2056 (F.C.A.) (QL), 2005 FCA 404, which bears repeating in its entirety:
[52] Second, the distinction between judicial review on the grounds of breach of procedural fairness, and the standard of review in other cases of substantive judicial review, must be recognized, as the pragmatic and functional approach properly applies only to the latter. Although Dr. Q appears to have implied that the pragmatic and functional analysis must be applied in every case of judicial review, this is not so; the Supreme Court's comments in Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29 [CUPE], released shortly after Dr. Q, clarifies the matter. In CUPE, Justice Binnie explained as follows the interaction between procedural fairness and the pragmatic and functional standard of review analysis:
100 ... It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. It is only the ultimate exercise of the Minister's discretionary s. 6(5) power of appointment itself that is subject to the "pragmatic and functional" analysis, intended to assess the degree of deference intended by the legislature to be paid by the courts to the statutory decision maker, which is what we call the "standard of review".
[…]
102 The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.
103 On occasion, a measure of confusion may arise in attempting to keep separate these different lines of enquiry. Inevitably some of the same "factors" that are looked at in determining the requirements of procedural fairness a