Vancouver Wharves Ltd. v. Canada (Attorney General), docket T-1125-97

Date: 19980626

Docket: T-1125-97

BETWEEN:

                                                  VANCOUVER WHARVES LTD.

                                                                                                                                            Applicant

AND:

                                         THE ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

ROULEAU, J.

[1]         This is an application for an order setting aside the decision of the Regional Safety Officer, Serge Cadieux, dated April 25, 1997, wherein he varied the direction given to Vancouver Wharves Ltd., by Safety Officer Andrew Chan.

[2]         The applicant operates a deep-sea terminal located at the entrance to the Port of Vancouver in Burrard Inlet. Products such as copper concentrate, lead concentrate, zinc concentrate, methanol, pulp and paper, sulphur, potash and urea are loaded and unloaded from ships, barges, railcars and trucks at the applicant's terminal.

[3]         On June 28, 1994, Mr. Ron Kitchen, a foreman employed by Vancouver Wharves Ltd., was in charge of the operation of loading pulp on a barge when he was hit by a lift truck and suffered fatal injuries. The accident occurred on the applicant's dock when a lift truck driver, Ted Mannion, backed up his machine, struck Mr. Kitchen, and pinned him against another lift truck which was parked on the dock.

[4]         Mr. Andrew Chan, a Safety Officer employed by Labour Canada immediately investigated the accident. On September 29, 1994, he issued a direction to Vancouver Wharves Ltd. pursuant to subsection 145(1) of the Canada Labour Code, Part II. The direction read in part as follows:

The said safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, is being contravened:

Paragraph 125(q) of the Canada Labour Code, Part II and paragraph 14.23(1)(c) of the Canada Occupational Safety and Health Regulations

There is no safe work procedure for loading and unloading lift trucks using a mobile crane in connection with the pulp barge operations.

[5]         Subsection 146(1) of the Canada Labour Code provides that where an employer considers itself aggrieved of any direction issued by a safety officer, it may request that the Regional Safety Officer review the direction. On October 11, 1994, Vancouver Wharves Ltd. wrote to the Regional Safety Officer, Serge Cadieux, requesting that he review Mr. Chan's direction. A hearing was held before Mr. Cadieux on March 15, 1995, at which time the applicant and its counsel made submissions with respect to the direction issued by Mr. Chan.

[6]         On May 31, 1995, the Regional Safety Officer issued his decision (the "first decision"), wherein he varied the direction given by Mr. Chan to the applicant by replacing the third and fourth paragraphs of the direction, immediately following the word "contravened", with the following two paragraphs:

Paragraph 125(p) of the Canada Labour Code, Part II and paragraph 14.49(2)(c) of the Canada Occupational Safety and Health Regulations.

Materials, goods or things shall not be stored or placed on the docks in a manner that impede the safe operation of materials handling equipment such as a fork lift.

[7]         Thereafter, Vancouver Wharves Ltd. brought an application in this Court for judicial review of Mr. Cadieux's decision. By decision dated June 19, 1996, Mr. Justice Wetston set aside certain parts of the impugned decision on the grounds that the Regional Safety Officer had not provided notice, and therefore no opportunity, for the applicant to adduce evidence and make submissions regarding the direction which was given. Accordingly, he referred the matter back to Mr. Cadieux for redetermination.

[8]         A rehearing took place before the Regional Safety Officer on March 3 and 4, 1997. By decision dated April 25, 1997, Mr. Cadieux found that Mr. Kitchen was fatally injured because his workplace was unsafe as a result of placing the damaged lift truck immediately behind the replacement lift truck, an action that impeded the safe operation of the replacement lift truck. He therefore varied the direction given by Mr. Chan by replacing the third and fourth paragraphs with the following two paragraphs:

Paragraph 125(p) of the Canada Labour Code, Part II and paragraph 14.49(2)(c) of the Canada Occupational Safety and Health Regulations.

A damaged lift truck was placed on the dock immediately behind a replacement lift truck in such a manner that it impeded the safe operation of the replacement lift truck.

[9]         The applicant now seeks to have the Regional Safety Officer's decision set aside on the grounds that he lost or exceeded his jurisdiction in the following ways; by overturning the decision of Mr. Chan; by failing to consider the viva voce evidence presented at the hearing; by preferring the account of fact in the report of Mr. Chan over that viva voce evidence; and, that he erred in the determination of his own jurisdiction, or otherwise acted outside his jurisdiction, when he found that he had the authority to vary a direction of the Safety Officer by substituting a contravention of a different section of the Canada Labour Code and a different section of the Regulations.

[10]       I am dismissing the application for the following reasons.

[11]       The relevant provisions of the Canada Labour Code read as follows:

(emphasis added)                                     (non souligné dans l'original)

[12]       During the second hearing before Mr. Cadieux, the applicant argued that the power to vary a direction, given to the Regional Safety Officer pursuant to subsection 146(3), did not grant him jurisdiction to issue a new direction which identified different provisions of the legislation. Mr. Cadieux's determination on this issue is set out at pp. 14 and 15 of his decision as follows:

The safety officer was clear in his mind which main factor under the control of the employer resulted in the accident. He wrote "if the damaged machine had been disconnected and moved away prior to manoeuvring the replacement machine into the area, the injury would not have occurred." That conclusion of the safety officer formed the bases of his direction as he obviously considered this situation to be the root cause of the accident.

The solution chosen by the safety officer i.e. operator training, was determined in Decision #95-006 to be incorrect. In order to correct that error, I varied the direction while preserving its intent (to correct the problem described in the previous paragraph) and identified the correct provision that would achieve the purpose that the direction of safety officer Chan intended to achieve. The question raised by Mr. Francis is whether the power given to the Regional Safety Officer to vary a direction would accommodate a variance that would identify different provisions that accord with the problem to be corrected.

The word "vary" is defined by The Concise Oxford English Dictionary, Eight Edition, 1990, to mean 1. Make different,; modify, diversify; 2. a. undergo change; become or be different. The french equivalent of "vary" is "modifier" which, according to Le Petit Robert Dictionary, 1991, means 1. Changer (une chose) sans en alterer la nature, l'essence;". Clearly then, the word "vary" or its french equivalent "modifier" which has the same force in law, is sufficiently flexible to permit expressing the problem identified by the safety officer in a different manner as long as its nature is not altered.

When Parliament enacted Part II of the Code, it included a purpose clause through which the words and provisions in the Code must be interpreted. It provides:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

Hence, we must ask ourselves: what was the purpose of Parliament when it entrusted the Regional Safety Officer with the power to vary a direction. Under section 146 of the Code, the Regional Safety Officer already has the power to rescind or confirm a direction. Surely then, the power to vary a direction meant that if the safety officer references the wrong regulation in the direction, the Regional Safety Officer can redress the error as long as the correction accords with the facts reported by the safety officer. The Regional Safety Officer, like the safety officer before him, is guided in his responsibilities by the purpose clause.

The power to review a direction requires that the Regional Safety Officer look at the same circumstances investigated by the safety officer and, if needed, vary the content of the direction. This does not mean that if the safety officer looked at whether the employer contravened subsection 145(1) of the Code, I could conclude that the safety officer purported to look at whether a danger existed and issue a direction under subsection 145(2) of the Code. That, in my opinion, would amount to exceeding my jurisdiction because it would require that I issue a new direction for danger, a power that was not given to the Regional Safety Officer. The direction that I varied was issued under the authority of subsection 145(1) of the Code and the variance that I made to the direction is also made under the same authority on the basis of the same facts considered by the safety officer.

[13]       It is established law that where a tribunal is called upon to determine questions with respect to its own jurisdiction, the standard of review is correctness. However, the application of this standard must include a "pragmatic and functional" consideration of the overall purpose of the tribunal's enabling legislation, the reason for the tribunal's existence, the area of expertise of the tribunal and the nature of the problem arising for interpretation. These principles were set out by the Supreme Court of Canada in U.E.S. Local 298 v. Bibeault [1988] 2 S.C.R. 1048 at p. 1088 as follows:

. . . only a patently unreasonable error results in an excess of jurisdiction when the question at issue is within the tribunal's jurisdiction, whereas in the case of a legislative provision limiting the tribunal's jurisdiction, a simple error will result in a loss of jurisdiction. It is nevertheless true that the first step in the analysis necessary in the concept of a "patently unreasonable" error involves determining the jurisdiction of the administrative tribunal. At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.

(emphasis added)

[14]       Applying these principles to the case at bar, I can find no fault with the Regional Safety Officer's determination of the jurisdictional issue before him. The statutory scheme contained in the Canada Labour Code is clear; the Regional Safety Officer, Mr. Cadieux, has the power to inquire, in a summary way, into the circumstances of the fatal accident at Vancouver Wharves Ltd. and to thereafter, confirm, rescind or vary any direction issued by the Safety Officer, Mr. Chan. To restrict that power of review in the manner suggested by the applicant, that is, to prohibit the Regional Safety Officer from correcting a Safety Officer's direction by identifying the proper paragraph of section 125 of the Code and the proper Regulations would, in effect, negate the powers which the Regional Safety Officer has been expressly given by Parliament pursuant to subsection 146(3).

[15]       Furthermore, although the parties were unable to provide me with case law concerning the meaning of the power to vary a decision under subsection 146(3) of the Code, there is an abundance of case law concerning that power in other analogous statutory contexts. These decisions are irrefutable. The power bestowed by a legislative enactment to "vary" a decision is sufficiently broad to allow the substitution of a new decision.

[16]       Accordingly, I am satisfied that the Regional Safety Officer did not exceed his jurisdiction when he varied the Safety Officer's direction by substituting his own direction.

[17]       Nor am I prepared to interfere with Mr. Cadieux's finding of fact that Mr. Kitchen was fatally injured because his workplace was unsafe as a result of placing the damaged lift truck immediately behind the replacement lift truck, an action which, in his view, impeded the safe operation of the replacement lift truck. 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.

[18]       The essence of the applicant's complaint is the outcome of the Regional Safety Officer's evidentiary assessment. However, I am satisfied that his determination was supported by a number of evidentiary conclusions which were reasonably open to him based on the testimony and other material before him. In coming to the conclusion that he did, Mr. Cadieux noted that the Safety Officer made a finding that if the damaged machine had been disconnected and moved away prior to manoeuvring the replacement machine into the area, the injury would not have occurred. He also considered the fact that a joint employer-union investigation team found that the direct cause of the injury was the machine crushing Mr. Kitchen into the parked machine and that the team recommended the following be added to the operating procedures for barge loading/unloading: "If a machine has to be replaced for any reason, it should be removed from the immediate area PRIOR to a replacement machine being brought under the hook."

[19]       I cannot ascertain that there exists the kind of error in Mr. Cadieux's decision which would justify my intervention. His decision, in my view, is fully consistent with the evidence. There is no finding of fact made in a capricious manner or without regard to the evidence.

[20]       Finally, the applicant takes issue with the fact that Mr. Cadieux did not refer in his decision to the viva voce evidence which it proffered at the hearing. However, simply because an administrative tribunal does not summarize all the evidence before it in its written reasons does not mean the evidence has been ignored or misconstrued. The reasons of the Regional Safety Officer need not list every conceivable factor which may have influenced his decision nor is he required in his written decision to review all of the evidence that was before him.

[21]       In Alberta Wheat Pool v. Grain Workers' Union, Local 333 (unreported, A-998-91, March 3, 1994), the Federal Court of Appeal, in dealing with a similar argument as that raised by the applicant in the present case, stated at p. 3 as follows:

It also was argued that all the relevant evidence was not considered by the R.S.O. Nothing, counsel says, shows the R.S.O. considered all the evidence, especially the Pacific Wheat Pool file, which the parties had agreed should form part of the record in this review. We are not persuaded that the R.S.O. ignored useful evidence that was relevant to reach his decision. The absence of a reference to particular evidence does not mean that it has not been considered. By his decision, the R.S.O. indicated that he had a grasp of the essential issues to be decided and he obviously agreed with the conclusion of the S.O.. We cannot say, on this record, that he failed to consider any important evidence in coming to his decision.

[22]       I find that reasoning equally applicable to the case at bar. Mr. Cadieux's reasons demonstrate an understanding of the pertinent issues and of the relevant evidence. There is nothing to indicate he failed to consider any aspect of the applicant's submissions. On the contrary, his decision clearly sets out his findings of fact and the evidence on which those findings were based.

[23]       In summary, the true essence of the applicant's complaint is that any direction was issued against it at all. I note that in the applicant's letter to Mr. Cadieux, wherein it requested a review of Mr. Chan's direction, its stated position was that the Safety Officer's direction was both erroneous and unnecessary as the company "has become a very safety-conscious enterprise". In requesting a review of Mr. Chan's direction, the applicant was in fact, seeking to have it rescinded. It is obviously unhappy that the direction, rather than being rescinded, was instead varied by the Regional Safety Officer. However, that was entirely within Mr. Cadieux's jurisdiction as Regional Safety Officer and his decision is fully supported by the evidence.

[24]       For these reasons the application is dismissed. I make no order as to costs.

     JUDGE

OTTAWA, Ontario

June 26, 1998

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:     T-1125-97

STYLE OF CAUSE:Vancouver Wharves Ltd. v. The Attorney General of Canada

PLACE OF HEARING:          Vancouver, British Columbia

DATE OF HEARING:                 April 8, 1998

REASONS FOR JUDGMENT OF MR. JUSTICE ROULEAU