Federal employers are required under Part II of the Canada Labour Code (the “Code”) to ensure that a workplace health and safety committee or representative inspects the workplace annually. In 2017, the Federal Court of Appeal decided that duty may extend to locations that the employer does not control. A recent Supreme Court of Canada decision has clarified the scope of this duty.
In 2012, the Canadian Union of Postal Workers (“CUPW”) filed a complaint alleging that Canada Post was breaching its Code obligations at its Burlington, Ontario operations by failing to inspect all letter carrier routes and points of call serviced from that facility. In Canada Post’s view, the Code only required a health and safety inspection of the Canada Post facility in Burlington.
Following an investigation, a federal government Health and Safety Officer accepted CUPW’s position. The officer decided that Canada Post had contravened its Code inspection obligation because inspections were restricted to the Canada Post building and did not extend to letter carrier routes and points of call. The Health and Safety Officer reached this decision despite the fact that Canada Post did not own or control the letter carrier routes and points of call that were serviced from its Burlington facility. Canada Post appealed.
The Appeals Officer agreed with Canada Post, finding that the inspection obligation did not apply to any place where a letter carrier is engaged in work outside of Canada Post’s physical building in Burlington. In the Appeals Officer’s view, while the legal term “workplace” included all letter carrier routes and points of call, in reality an employer could only fulfil the workplace inspection obligation if it also controlled the location in question. Since Canada Post had no control over letter carrier routes or points of call, it could not comply with the workplace inspection obligation at those locations and was not required to do so by the Code. CUPW asked a judge to review the Appeals Officer’s decision. The Federal Court decided that the Appeals Officer’s decision was reasonable. CUPW appealed.
In a 3-way split decision, the Federal Court of Appeal allowed CUPW’s appeal. The three sets of reasons contained different and conflicting interpretations of the inspection duty. Two judges decided that the employer inspection duty could apply regardless of whether the employer controls the location where its employees are working. Specifically, the inspection obligation would apply so long as the employer controls the work activity at the location regardless of whether the employer controlled that location. This decision created uncertainty about the scope of employer obligations under Part II of the Code.
The Supreme Court of Canada granted Canada Post leave to appeal the decision.
What did the Supreme Court of Canada Decide?
The Court said that the Federal Court of Appeal had improperly conducted its own interpretation of the Code instead of considering whether the Appeals Officer’s decision was reasonable. The Court decided the Appeal Officer’s decision was reasonable and restored it.
The Court said while public interest laws (like health and safety laws) are usually interpreted broadly, narrow interpretations can be appropriate to avoid absurdity. The Court wrote that “[a]n interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of preventing accidents and injury”. It would be impractical to extend the workplace investigation obligation to areas that Canada Post did not own on control because it would not have the authority to alter or fix those locations in the event of a hazard. The Court noted that the Appeals Officer’s consideration of practical concerns did not supplant the need to ensure consistency with the statutory scheme, but rather enhanced the interpretive exercise. Overall, the Appeals Officer’s decision was consistent with the purpose of the Code, and it was defensible in light of the relevant legal and factual considerations.
What Should Employers Take Away?
It is now clear that, in most cases, a federally regulated employer is not required to ensure the inspection of locations that it does not control. More generally, the Court decision emphasizes that the practical operation of the workplace - including an employer’s ability to fulfill an alleged obligation - is an important and legitimate factor that adjudicators and courts should consider when interpreting workplace legislation, including health and safety laws.
Lawyers from Fasken’s Toronto and Montreal offices appeared before the Supreme Court of Canada on behalf of three of the intervenors supporting Canada Post: Christopher Pigott and Rachel Younan for FETCO Inc. (Federally Regulated Employers – Transportation and Communications); Stéphane Fillion and Michael Adams for the Maritime Employers Association, Halifax Employers Association and the British Columbia Maritime Employers Association; and Brian Smeenk for Rogers Communications Inc.. Sophie Arseneault of Fasken’s Ottawa office acted as Agent for all intervenors.
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