Canada Post Corp v Canadian Union of Postal Workers: Workplace safety diluted for federal employees
Workplace safety regulations often apply to the space where the employee works, but many workers perform their duties across multiple locations; sometimes out in the public or on private property. For example, Canada Post mail carriers spend three-quarters of their time outside delivering mail to locations along their designated routes, and only one-quarter of their time at the mail depot (Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] at para 68). Are employers required to ensure the safety of locations that they do not control, such as mail carrier routes and delivery locations? This was the question before a health and safety tribunal in Ontario after a union representative in made a formal complaint that Canada Post was not inspecting carrier routes and delivery locations (“points of call”) to the same standard as inspections at their mail depot. The tribunal found that employers are not obligated to inspect the carrier routes or points of call under the Canada Labour Code, RSC 1985, c L-2 (“the Code”). In Canada Post, the Supreme Court of Canada (the “Court”) was tasked with reviewing this administrative decision.
Facts and Legislation
In August 2012, a Canadian Union of Postal Workers representative who was on the Local Joint Health and Safety Committee at Canada Post’s Burlington Depot filed a formal complaint against Canada Post because it was only performing annual workplace inspections in compliance with the Code at the Burlington mail depot (Canada Post, para 4). The carrier routes and points of call in Burlington were not inspected to the same standard. The Union argued that the law requires inspections be carried out in these locations too, as mail carriers spend most of their time on these routes (Canada Post, para 4). While the complaint only concerned the 73 carrier routes in Burlington, the impact of the complaint could have affected operations across Canada.
Section 125(1)(z.12) of the Code was the specific provision at issue. It provides a list of obligations required of federal employers to protect the workplace safety of employees. It reads:
…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…
Paragraph z.12, the specific paragraph at issue in this appeal, requires the employer to ensure every part of the workplace is inspected at least once per year.
A formal complaint about workplace safety in a federal jurisdiction workplace is first made to a Health and Safety Officer at the Ministry of Labour. Their decision can be appealed, in which case an Appeals Officer from the Occupational Health and Safety Tribunal will conduct the appeal hearing. The Officer acts as the tribunal. In this case, the Health and Safety Officer (“HSO”) initially found in favour of the Union, but this was later overturned by the Appeals Officer (the “Officer”).
The Majority: A Reasonable Decision
Writing for the majority, Justice Rowe used the brand new Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] framework to analyze the officer’s decision, finding that the Officer’s decision was reasonable (Canada Post, para 24). Vavilov’s presumed standard of review—reasonableness—was applied. Following this standard, Justice Rowe determined that the Officer consistently and rationally explained his reasons for the decision, he appropriately used the statutory context and purpose of s. 125(1) throughout his reasons, and he adequately considered all of the evidence and submissions before him (Canada Post, para 35).
Justice Rowe agreed with the Officer that the wording of the statute itself was not clear enough on its face to determine if employers who have control of work activity but not of the workplace were bound by all of s. 125(1)’s enumerated obligations or not (Canada Post, para 49). The Officer considered the statutory context and concluded that some obligations only make sense if they apply solely to employers who have control over the workplace (Canada Post, para 50). One such obligation would be to ensure that all buildings and structures meet prescribed standards (Canada Post, para 51). Justice Rowe found this consideration of statutory context to be reasonable.
In considering the statutory purpose—to prevent accidents and injury through the course of employment— the Officer found that postal worker’s health and safety were sufficiently protected by other applicable provisions (Canada Post, paras 56-57). Justice Rowe also found this reasonable and suggested that, where one obligation under s. 125(1) could not be met due to the nature of the workplace, it would be reasonable to expect that the workplace safety of workers remained protected by the other measures provided for in the statutory scheme (para 58). The Officer further explained that imposing an obligation on an employer that cannot be fulfilled does nothing to protect the health and safety of its employees, which Justice Rowe also found compelling (para 59). Thus, Justice Rowe found the Officer’s justification for his limiting interpretation of s. 125(1) to be reasonable.
The Dissent: A “Deeply Flawed” Decision
Writing for herself and Justice Martin in dissent, Justice Abella vehemently disagreed with Justice Rowe, stating the Officer’s reasoning process was “deeply flawed” (Canada Post, para 100). She found that the Officer’s reasoning was not internally coherent, and that he “[read] out the words and purposes of the safety inspection duty,” leading him to an unreasonable conclusion (Canada Post, para 100-101). She also voiced concern that the Officer’s re-interpretation of the statute would have widespread implications, since the statute applies to all federal employees, not only to those of Canada Post (Canada Post, para 94).
Justice Abella found the words of the statute to unambiguously require employers to meet all enumerated obligations, regardless of whether they control the workplace or not (Canada Post, para 77-78). Given that s. 125(1)’s statutory purpose was to protect workers from safety hazards, that thousands of federal employees work outside of employer-owned locations, and that Parliament expressly included this situation in the language of the statute, Justice Abella found that Parliament clearly sought to protect those workers, too (Canada Post, para 80). Further, she emphasized the importance of workplace health and safety protections by reminding the Court of the impetus for these very inspection obligations: the 1992 Westray Mine explosion in Nova Scotia that killed 26 miners (Canada Post, para 83). As part of this discussion, she references Parliamentary discussions and documents that demonstrate the importance of safety inspections to the government in responding to that tragedy (Canada Post, para 88).
The dissenting opinion engaged significantly with the Officer’s conclusion that requiring employers to inspect locations over which they have no control would be impractical and illogical. Justice Abella protested that simply because an obligation is difficult to meet does not deem the obligation legally unenforceable. She reasoned that the obligation would not be so impractical anyway, demonstrating that the legislation was drafted to allow for a context-specific approach. She suggested that Canada Post’s already functioning WHPP audits were precisely what Parliament had in mind in setting out the inspection obligation (Canada Post, para 93). Finally, Justice Abella took issue with the binary nature of the Officer’s interpretation of the statute: that an obligation either applies to an employer or it does not. She suggested that there are varying degrees to which an employer may be able to inspect or fix hazards in its employee’s off-site workplaces, such that abrogating the need for these employers to conduct inspections at all unnecessarily limited paragraph z.12’s application (Canada Post, para 99). In summary, “[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” (Canada Post, para 99).
An Early Application of Vavilov: Clarity and Simplicity Delivered
As the Court’s first judicial review following the Vavilov’s release, it was important for the Supreme Court to both anchor and exemplify the new administrative law framework (read more about Vavilov in Rebecca Rossi’s theCourt.ca case comment). Arguments in Canada Post were made before the Court based on the previous Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework, so the majority judgment considered both Dunsmuir and Vavilov in reaching its conclusion. Justice Rowe’s analysis demonstrated the simplicity of the new framework. He determined the presumptive standard of reasonableness applied, he reasoned that the Officer’s decision was internally coherent, that the Officer appropriately considered the legal and factual constraints that bear on the decision, and that the Officer adequately considered the evidence and submissions before him. He used these considerations to find the Officer’s decision reasonable.
Justice Abella’s dissenting opinion made no express mention of Vavilov nor its steps. Notably, she did not agree with the new direction taken by the majority in Vavilov, a decision in which she co-wrote a concurring opinion that assented to the majority’s conclusion but not their methodology. She appeared concerned that the new framework represented a much larger shift in administrative law than was warranted. Her lack of explicit engagement with Vavilov in Canada Post may demonstrate the weight of these concerns.
Interestingly, though Justice Abella did not delineate her analysis according to the Vavilov steps, nor did she use its language or cite the decision, she appeared to account for its same considerations in her conclusion. Without using the words “internally incoherent,” Justice Abella wrote that the Appeals Officer noted the purpose of safety inspections without giving that purpose any meaningful effect in his reasons (Canada Post, para 100). She then found the Officer’s decision unreasonable for improperly considering the statutory context of the Code; in other words, inappropriately considering the legal constraints that bear on the decision.
Though there may remain some tension within the Court regarding the Vavilov framework, Vavilov’s promise of clarity and simplicity was delivered in Canada Post. Unfortunately for federal employees working in decentralized workplaces, their workplace safety protections were not delivered and are now left hanging in the balance.