FOCUS ON LABOUR AND EMPLOYMENT - Deference to appeals officer a win for employers
Canada Post does not have to inspect mail routes and destinations in yearly health and safety checks, the majority of Supreme Court of Canada judges said, in the first major application of a new standard of review framework.
The Dec. 20, 2019 decision, Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, marked the court’s first application of the paradigm espoused in the Dec. 19 decision, Canada (Minister of Citizenship and Immigration) v. Vavilov, although the release of Vavilov did not change the “reasonableness” standard of review.
“In Vavilov, this Court set out a revised framework for determining the applicable standard of review for administrative decisions. The starting point is a presumption that a standard of reasonableness applies,” wrote Justice Malcolm Rowe, with Justices Wagner, Moldaver, Karakatsanis, Gascon, Côté and Brown concurring.
“This presumption can be rebutted in two types of situations. The first is where the legislature has statutorily prescribed a standard of review or where it has provided for an appeal from the administrative decision to a court. The second is where the question on review falls into one of the categories of questions that the rule of law requires be reviewed on a standard of correctness.”
In the case of Canada Post, the majority concluded, there was no reason to depart from the presumption of reasonableness review.
In the Canada Post decision, the SCC looked at the duties in respect of health and safety under the Canada Labour Code. The court sided with an appeals officer, who had decided the inspection duties applied only to the parts of the work place over which the employer had control — not including routes. At the time, Canada Post delivered to nine million places along 72 million kilometres of routes, much of which was private property.
The majority’s decision lends support to the idea that — while obligations should be interpreted as promoting health and safety — it’s also important to consider the practical ability of an employer, says Chris Pigott, a partner at Fasken Martineau DuMoulin LLP and one of the lawyers for an intervenor, Federally Regulated Employers — Transportation and Communications. For example, a cable company working in someone’s home or a broadcaster sending reporters to a war zone would not be able to send a safety inspector with each employee, says Pigott.
“For employers, this decision is a really big deal. I've spoken to my clients and a number of other of the employers who were involved this morning — the practical implications on the ground of the Federal Court of Appeal decision were very profound,” Pigott says.
“You can't interpret a statute in a manner that is impossible to apply in practice on the ground. From a labour and employment practice perspective, I think it is important for both employer advocates and worker advocates. It really drives home the point that the practical operation of the workplace is both an important and legitimate to concern to raise in judicial review applications.”
The Supreme Court also emphasizes the decision maker’s reasons as the starting point for a review, says Pigott, pointing to the way the SCC analyzed the appeal officer’s ruling.
“The Appeals Officer’s decision responded to the issue before him, and took into account the detailed submissions of both parties,” wrote Rowe. “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.”
Rowe conclude the appeal officer’s reasoning was clear and reinstated the interpretation that the Canada Post need not inspect the points of call where it had no control to fix hazards.
“The Appeals Officer applied his interpretation of the provision to these facts and concluded the obligation to inspect the work place ‘is one that can only apply to an employer who has control over the physical work place,’” wrote Rowe. “The interpretation he arrived at is harmonious with the text, context and purpose of the provision.”
Stephen Bird, a partner at Bird Richard in Ottawa who worked on the case through several levels of the lower courts, says the decision is likely to be a relief to many employers who would have been “adversely affected to a huge degree” by obligations to inspect the top of hydro poles or the back country of national parks.
The decision, while mainly applicable to federal employers, is not inconsistent with provincial cases such as Blue Mountain v. Ontario Ministry of Labour, says Bird. However, Bird notes that dissenting opinions can be powerful as well.
Justice Rosalie Abella wrote a dissenting opinion arguing that failing to inspect the mail routes where workers spend three-quarters of their time is “unreasonable and inconsistent with the purpose and text of the safety inspection provision,” calling the appeal officer’s “all-or-nothing” approach to safety inspections “deeply flawed.”
“This is an unambiguous dual legislative direction to employers that their safety obligations — including the inspection duty — 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,” wrote Abella, with Justice Sheilah Martin concurring.
Since Canada Post controls the activities of letter-carriers, it is bound by inspection duty, wrote Abella, noting that Parliament sought to protect employees outside of employer-owned locations after the 1992 Westray Mine tragedy in Nova Scotia, in which 26 miners were killed.
“The Appeals Officer acknowledged that Canada Post has extensive and strict control over mail delivery by letter-carriers. As he noted, it sets their routes down to minute details and dictates the manner of the mail delivery, ‘right down to the way they hold their satchels and how they walk the routes,’” wrote Abella. “This not only shows that Canada Post controls the ‘work activity’ of letter-carriers, it shows that the control is stringent.”
Abella also noted that provincial definitions of “work places” are not currently limited to employer-controlled areas.
Pigott, whose firm also represented other employer intervenors, says that he doesn’t see a conflict arising around the definition of a workplace, since the inspection obligation was the only one being read more narrowly. However, Pigott says Abella’s reasoning in Vavilov, compared to the Canada Post case, illustrates the tension in how appellate courts judge deference.
“Safety inspections exist to proactively identify hazards before workers are exposed to them, and ensure that they will either be fixed or avoided,” wrote Abella. “Canada Post’s control over its employees’ work activities gives it several options for addressing hazards on mail routes, such as instructing employees to avoid certain portions of their routes pending resolution of those hazards by the party with the capacity to do so. Canada Post can also provide its carriers with equipment or guidance designed to mitigate potential hazards revealed by a safety inspection.”