Date: 20001207
Docket: T-1732-99
B E T W E E N:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] The Attorney General of Canada (the "Applicant") seeks judicial review of a decision rendered by Serge Cadieux, Regional Safety Officer, pursuant to the Canada Labour Code, Part II ("Code") (decision number 99-018). The Applicant seeks an Order that the decision of the Regional Safety Officer be set aside and the matter remitted back to the Regional Safety Officer with a directive that he rescind the Direction forming part of his decision.
[2] The Public Service Alliance of Canada (the "Respondent") opposes the application and supports the decision under review.
[3] The decision in question was made by the Regional Safety Officer in the exercise of his power under section 146 of the Code to vary, rescind or confirm the Direction of a Safety Officer appointed under the Code.
[4] At issue is the manner in which the Regional Safety Officer interpreted the words "every person" in section 125(v) of the Code, to apply to employees of an independent contractor who had been contracted to work on a federal building that housed federal employees. In particular, the Applicant claims that the interpretation given to the words "every person" by the Regional Safety Officer has the effect of imposing federal regulatory power over persons who are regulated by provincial occupational and safety health legislation.
THE FACTS
[5] At approximately 4:30 a.m. on January 4, 1999, a fire occurred at a building located at 189 Prince William Street, Saint John, New Brunswick. The building was owned by Public Works and Government Services Canada ("Public Works"). Public Works had entered a contract with Simpson Building Limited, a provincial firm, to carry out exterior wall cladding on the building.
[6] Simpson Limited was an independent contractor with exclusive care and control of the workplace. In order to carry out the wall cladding and roof repairs, scaffolding was erected and attached to the Public Works building.
[7] As a result of the fire, Safety Officer Luc Sarrazin conducted an investigation at the building. While on site, he observed a number of violations of the Code. In particular, he observed several workers located on the scaffolding who were not provided with or using fall protection equipment contrary to paragraph 12.10(1) of the Canada Occupational Safety and Health Regulations, S.O.R./86-304. Pursuant to his power under section 141(1) of the Code, the Safety Officer issued a Direction to Public Works indicating a contravention of section 125(v) of the Code. Public Works was directed to terminate this contravention no later than January 6, 1999.
[8] Public Works then requested, pursuant to section 146 of the Code, that a Regional Safety Officer review Mr. Sarrazin's Direction to determine whether it should be varied, rescinded or confirmed. An oral hearing was conducted in Saint John, New Brunswick on June 29, 1999. Prior to the hearing, the parties agreed that the Regional Safety Officer would decide who the employer was, for the purposes of section 125(v) of the Code.
[9] The Regional Safety Officer made several findings. He found that the proper employer for the purposes of section 125(v) was the Treasury Board. The employees who were to be protected pursuant to Part II of the Code were the federal employees occupying the building at Prince William Street.
[10] He found that the "workplace", within the meaning of section 122(1) of the Code, was 189 Prince William Street, Saint John, New Brunswick. The workplace included the parking lot, the lawn, the surroundings of the building and any attachments to the building.
[11] Following the erection of the scaffolding and its attachment to the building, the scaffolding became part of the workplace.
[12] Finally, he found that the workplace, as defined above, was under the control of the Treasury Board. Since the Treasury Board controls the workplace, it also controls access to the building, including access to the scaffolding for the purposes of the Code.
[13] On the basis of these findings, the Regional Safety Officer upheld the Direction concerning section 125(v) of the Code, but varied it slightly so that it was given to the Treasury Board rather than to Public Works. In his reasons, he found as follows:
The purpose of this far reaching provision is, in my opinion, not for the employer to assume jurisdiction over these employees but to assume his/her responsibility in regards to the work place under his/her control. While I would agree that this provision seems to extend the responsibility of the employer beyond the traditional employer/employee relationship, it is most importantly one that makes good sense from a health and safety perspective.
In this case, the safety officer observed, during his inspection of the scaffolding, employees of the firm not wearing the safety equipment required by paragraph 12.10(1)(b) of the Regulations. Paragraph 125(v) of the Code places a mandatory requirement on the employer to "...ensure that every person granted access to the work place by the employer..." uses the prescribed safety equipment. The expression "every person granted access to the work place" is all inclusive and makes no distinction on the basis of jurisdiction or any other basis. It includes non-employees such as visitors, members of the public, workers of all jurisdictions, etc. (Emphasis in original)1
THE ISSUES
[14] The issues can be framed as follows:
1. Did the Regional Safety Officer commit an error of law and render a patently unreasonable decision, in varying but not rescinding the Direction of Safety Officer Luc Sarrazin?
2. Did the Regional Safety Officer exceed his jurisdiction by extending the application of the Code to include "workers of all jurisdictions"?
ARGUMENTS
[15] The Applicant argues that the interpretation given to section 125(v) of the Code by the Regional Safety Officer has the effect of indirectly applying federal regulatory power over provincially regulated employees. The Applicant says that the effect of the decision creates a regulatory anomaly and amounts to the incursion of federal power into a field which is properly within provincial jurisdiction.
[16] The Applicant says that the Regional Safety Officer's decision is not subject to a high degree of deference. Since the decision involves an interpretation of law, the Applicant says that the standard of review is that of correctness. At the very least, the standard of review is slightly lower, that is between patently unreasonable and correct. In this regard, the Applicant relies on the decisions of this court in West Coast Energy Inc. v. Canada (Labour, Regional Safety Officer) (1995), 104 F.T.R. 123 and Vancouver Wharves Limited v. Canada (Attorney General) (1998), 149 F.T.R. 253.
[17] For its part, the Respondent argues that the decision of the Regional Safety Officer is reasonable and does not trench upon provincial legislative competence. The Respondent says that the meaning of the decision is that the employer, that is Treasury Board, is responsible for the well-being of federal employees and in order to discharge that responsibility, must ensure that persons working on the building are properly equipped with safety equipment in order to avoid causing harm to the federal employees working in the building. The Respondent says that the appropriate standard of review is patent unreasonableness.
ANALYSIS
[18] This application is brought under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. Section 18.1(4) establishes that a decision of a federal board, commission or other tribunal cannot be overturned unless the tribunal has acted without jurisdiction, failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact or made a decision in a perverse or capricious manner.
[19] In my view, the decision under review here basically deals with a question of law. In Federal Marine Terminals Ltd., Division of Fednav Ltd. v. Longshoremen's Union, Local 375 [2000] F.C.J. 592, Teitelbaum J. considered the standard of review applicable to decisions of Regional Safety Officers. At paragraph 51 he found that the appropriate standard is somewhere between reasonableness and correctness, as follows:
I share the opinion of Cullen J. that the standard of review in the circumstances should be situated "somewhere between the standards of reasonableness and correctness", as he states in Westcoast Engergy Inc. v. Canada (Labour Code, Regional Safety Officer), [1995] F.C.J. No. 1534 (F.C.T.D.), at paragraph 24:
| In the case at bar, the decision is not protected by a privative clause. However, as discussed in Pezim, supra, the non-existence of a privative clause is not alone determinative. I am also prepared to find that the regional safety officer is a specialized decision-maker and am willing to give those findings which rest squarely within his expertise a great deal of deference. However, where the regional safety officer was interpreting the law, the standard of review should, in my view, be stricter. Although counsel for the applicant urged this Court to accept that the standard of review was correctness or closer to correctness, I am not prepared to go so far in that the regional safety officer was not interpreting a provision of the statute limiting his jurisdiction. Rather, the standard of review applicable to questions of law in the case at bar, in my view, falls somewhere between the standards of reasonableness and correctness.2 |
[20] It appears that the standard enunciated by Teitelbaum J. should apply in the present case.
[21] In brief, the Applicant's argument boils down to the view that section 125 of the Code is meant only to apply to federal public servants. The short version of the Respondent's argument is that section 125 of the Code should be extended to non-federal employees simply to ensure the health and safety of the federal employees.
[22] In my opinion, the Regional Safety Officer was not extending federal jurisdiction over provincial employees or non-federal employees. He was simply interpreting the words of section 125(v) in relation to the responsibility of an employer for the workplace under its control. The Regional Safety Officer found that the words "every person" were not limited merely to federal public employees. He justified the extension of section 125(v) on the basis that it is a far-reaching provision which requires the employer to assume responsibility for the workplace under its control.
[23] His reasoning is sound. The Regional Safety Officer was equating the Simpson employees with members of the general public. No issue was taken by either party with his definition of the workplace. There is no doubt that the federal employer, as occupier of the building situated at 189 Prince William Street in Saint John, would owe a general common law duty of care to members of the public for the safety of the premises, including the exterior of those premises.
[24] In conclusion, I am not persuaded that the Regional Safety Officer committed any error of law in his interpretation of section 125(v) of the Code. His decision is reasonable.
[25] The application for judicial review is dismissed with costs.
"E. Heneghan"
J.F.C.C.
December 7, 2000
OTTAWA, Ontario
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-1732-99 |
| STYLE OF CAUSE: Attorney General of Canada v. Public Service Alliance Canada |
| PLACE OF HEARING: Ottawa, Ontario |
| DATE OF HEARING: December 4, 2000 |
| REASONS FOR ORDER OF The Honourable Madam Justice Heneghan |
APPEARANCES:
| Mr. Richard Fader FOR APPLICANT |
Mr. André Gagnon
| Ms. Jacquie de Aguayo FOR RESPONDENT |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg FOR APPLICANT |
| Deputy Attorney General of Canada |
Ottawa, Ontario
Raven, Allen, Cameron & Ballantyne
| Ottawa, Ontario FOR RESPONDENT |
__________________
1Application Record, Tab 2, page 12
2Federal Marine Terminals Ltd., Division of Fednav Ltd. v. Longshoremen's Union, Local 375 [2000] F.C.J. 592, paragraph 52.
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