Date: 20100216
Docket: T-743-09
Citation: 2010 FC 154
Ottawa, Ontario, February 16, 2010
PRESENT: The Honourable Justice de Montigny
BETWEEN:
CANADA POST CORPORATION
Applicant
and
CANADIAN
UNION OF POSTAL WORKERS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This case
involves a complaint by the Canadian Union of Postal Workers (“CUPW”) under the
occupational health and safety provisions contained in Part II of the Canada
Labour Code, R.S.C. 1985, c. L-2 (“the Code”). CUPW filed a
complaint alleging that Canada Post Corporation (“Canada Post”) violated
several provisions of the Code by excluding the CUPW health and safety
representatives from participating in a process implemented by Canada Post to
assess the safety of delivery to rural mail boxes.
[2]
At issue
in this application for judicial review is whether an Appeals Officer erred in
his interpretation of the time limits for occupational health and safety
appeals contained in s. 146(1) of the Code. The Applicant seeks judicial
review of the Appeals Officer’s interlocutory decision in which he accepted the
appeal of CUPW as timely under s. 146(1). For the reasons that follow, I have
found that the Appeals Officer erred in his interpretation of that provision.
I. The
facts
[3]
The
Applicant, Canada Post, is an agent of Her Majesty in right of Canada, pursuant
to section 23 of the Canada Post Corporation Act (R.S.C. 1985, c. C-10),
and has exclusive jurisdiction over the establishment and operation of postal
services in Canada. It seeks judicial review of
an interlocutory decision dated April 17, 2009 by Appeals Officer Richard
Lafrance of the Occupational Health and Safety Appeals Tribunal Canada (“the Tribunal”).
[4]
The
Respondent CUPW made a complaint, dated September 20, 2007, to a Health and
Safety Officer of Human Resources and Skills Development Canada under Part II
of the Code. The complaint alleged that Canada Post violated several
provisions of the Code by excluding the CUPW’s health and safety
representatives from participating in a process implemented by Canada Post to
assess the safety of delivery to some 845,000 rural mail boxes across Canada.
[5]
The
complaint was referred to Health and Safety Officer (HSO) Nicole Dubé for
investigation and decision. On December 8, 2008, she concluded that Canada Post
had violated certain Code provisions and issued a Direction to Canada
Post pertaining to certain locations in the Ottawa/Eastern Ontario region. A
copy of that Direction was to be posted, without delay, and be given to the
Policy Health and Safety Committee and Work Place Health and Safety Committee. She
also required to be informed in writing, no later than December 15, 2008 of the
measures taken to comply with those directions, and she directed Canada Post to
provide a copy of that written response to the Policy Health and Safety
Committee and Work Place Health and Safety Committee. Finally, she informed
Canada Post that it could request, within thirty days of the date of the
direction being issued or confirmed in writing, a review by the appeals officer
pursuant to subsection 146(1) of the Code.
[6]
On
December 23, 2008, Ms. Dubé wrote to the CUPW at its National Office, to let it
know that she had investigated its complaint and had noticed some violations of
the Code. She also informed the CUPW that she issued a direction to the
employer on December 8, 2008, and that Canada Post had put in place activities
in order to mitigate the issue, as per its response dated December 19, 2008. Therefore,
she advised that the file regarding the complaint was to be closed, and that
the Labour program of Human Resources and Skill Development Canada “can,
therefore, take no further action on your behalf”, although other activities
would be conducted to ascertain continuous compliance.
[7]
The CUPW alleges
not to have received the December 23, 2008 letter until January 5, 2009 due to
the closure of its offices for the holiday season. CUPW filed its appeal of
Officer Dubé’s decision on January 30, 2009. Canada Post objected to the
appeal, alleging that it was filed in excess of the statutory limit of 30 days
from the date of the confirmation of the direction.
II. The
impugned decision
[8]
In an
interim decision dated April 17, 2009, Appeals Officer Lafrance concluded that
the appeal by CUPW was made within the 30-day time limit because the decision
had not come to the attention of CUPW until January 5, 2009. The Tribunal
consequently received CUPW’s application for appeal.
[9]
The
Appeals Officer first noted that s. 12 of the Interpretation Act, R.S.C.
1985, c. I-23, provides that statutes must be interpreted in a fair, large and
liberal way to ensure the attainment of their objectives. He found that the key
issue was the interpretation of the term “confirmed in writing” in s. 146(1) of
the Code, and noted that Black’s Law Dictionary defines “confirm” as “to
verify or corroborate”. He then considered that, in the context of s. 146(1) of
the Code, this means that the 30-day period starts either from the
moment a party receives the direction from the health and safety officer, or
from the moment a party aggrieved by the direction receives and verifies that
the written confirmation corroborates the pre-issued direction. Based on this
reasoning, he concluded:
In this case, the written confirmation
was prepared by the HSO on December 23, 2008; two days before the holiday
period. I find that because of this holiday period, were [sic] mail deliveries
may be delayed and work places, such as the Unions office, may be closed during
the holyday period, it is quite believable that CUPW received the written
confirmation only on January 5, 2009. Therefore, by applying for an appeal of
the direction on January 30, 2009, the time limit of 30 days was respected.
III. The issues
[10]
This
application raises the following three issues:
A. What is the standard of
review?
B. Did the Appeals Officer err in
his interpretation of s. 146(1) of the Code?
C. Should the Court decline to
exercise its discretion to review the Appeals Officer’s interlocutory decision?
IV. Relevant
statutory provisions
[11]
Section
146(1) of the Code provides:
|
Appeal of direction
146. (1) An employer, employee or trade union
that feels aggrieved by a direction issued by a health and safety officer
under this Part may appeal the direction in writing to an appeals officer
within thirty days after the date of the direction being issued or confirmed
in writing.
|
Procédure
146. (1) Tout employeur, employé ou syndicat
qui se sent lésé par des instructions données par l’agent de santé et de
sécurité en vertu de la présente partie peut, dans les trente jours qui
suivent la date où les instructions sont données ou confirmées par écrit,
interjeter appel de celles-ci par écrit à un agent d’appel.
|
[12]
The
predecessor provision, in force prior to 2000, read as follows:
|
146.(1) Any employer, employee or trade union
that considers himself aggrieved by any direction issued by a safety officer
under this Part may, within fourteen days of the date of the direction,
request that the direction be reviewed by a regional safety officer for the
region in which the place, machine or thing in respect of which the direction
was issued is situated.
|
146.(1) Tout employeur, employé ou syndicat
qui se sent lésé par des instructions données par l'agent de sécurité en
vertu de la présente partie peut, dans les quatorze jours qui suivent, en
demander la révision par un agent régional de sécurité dans le ressort duquel
se trouve le lieu, la machine ou la chose en cause.
|
[13]
At the
same time as s. 146(1) was amended, s. 146.2 was added to the Code. It
provides Appeals Officers with various powers including the power to “abridge
or extend the time for instituting the proceeding or for doing any act, filing
any document or presenting any evidence”: see s. 146.2(f).
[14]
Two other
provisions are also relevant to a proper understanding of the issue raised by
this application for judicial review:
|
Decision
final
146.3 An appeals officer’s
decision is final and shall not be questioned or reviewed in any court.
No
review by certiorari, etc.
146.4 No order may be made,
process entered or proceeding taken in any court, whether by way of
injunction, certiorari, prohibition, quo warranto or otherwise, to question,
review, prohibit or restrain an appeals officer in any proceeding under this
Part.
|
Caractère
définitif des décisions
146.3 Les décisions de l’agent
d’appel sont définitives et non susceptibles de recours judiciaires.
Interdiction
de recours extraordinaires
146.4 Il n’est admis aucun
recours ou décision judiciaire — notamment par voie d’injonction, de
certiorari, de prohibition ou de quo warranto — visant à contester, réviser,
empêcher ou limiter l’action de l’agent d’appel exercée dans le cadre de la
présente partie.
|
V. Analysis
A. Standard of review
[15]
There is
no dispute between the parties that the issue to be determined in this
application for judicial review is the interpretation to be given to s. 146(1)
of the Code, and is therefore legal in nature. It is also well
established, following the decision of the Supreme Court in Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (at paras. 54-55) that
deference will usually be accorded to a tribunal interpreting its own statute
or statutes closely connected to its function. This has been confirmed by this
Court and the Federal Court of Appeal in the context of the Code: see Martin
v. Canada (Attorney General), 2005 FCA 156, [2005] 4 F.C.R. 637, at paras. 17-18; P&O
Ports Inc. v. International Longshoremen’s and Warehousemen’s
Union, Local 500, 2008 FC 846, [2008] F.C.J. No. 1067.
[16]
There is a
presumption, therefore, that a tribunal’s interpretation of its enabling
legislation will normally be reviewable on a standard of reasonableness; aside
from Dunsmuir, this was confirmed in Association des courtiers et
agents immobiliers du Québec v. Proprio Direct Inc., 2008 SCC
32, [2008] S.C.J. No. 32 (at para. 21) and in Canada (Minister of
Immigration and Citizenship) v. Khosa, 2009 SCC 12, [2009]
S.C.J. No. 12 (at para. 25).
[17]
That being
said, the Supreme Court has identified certain issues to be determined
according to the correctness standard. Such will be the case, for example, for
constitutional questions, for “true” questions of jurisdiction, that is, “where
the tribunal must explicitly determine whether its statutory grant of power
gives it the authority to decide a particular matter” (Dunsmuir, above,
para. 59), for questions regarding the jurisdictional lines between two or more
competing specialized tribunals (Dunsmuir, para. 61), and where the
question at issue is one of general law “that is both of central importance to
the legal system as a whole and outside the adjudicator’s specialized area of
expertise (Dunsmuir, para. 60).
[18]
It is not
debatable that the Appeals Officer had the authority to make the inquiry and,
in so doing, to interpret and apply s. 146(1) of the Code. As Justice
Evans stated in Canadian Federal Pilots Assn. v. Canada (Attorney General), 2009 FCA 223, [2009] F.C.J.
No. 822 at para. 51, “…administrative tribunals performing adjudicative
functions (…) normally have explicit or implied authority to decide all
questions of law, including the interpretation of its enabling statute,
necessary for disposing of the matter before it…”
[19]
Having
found that the Appeals Officer had the legal authority to interpret s. 146(1)
of the Code, I must now determine the applicable standard of review of
his interpretation. As previously mentioned, if previous decisions of this
Court and of the Court of Appeal are to be a guide, the reasonableness standard
should be applied when an Appeals Officer interpret a provision of the Code
– indeed, the Federal Court of Appeal applied the patently unreasonable
standard in Martin, above, but that decision was reached before Dunsmuir,
above. But the provisions at stake both in Martin and in P&O
Ports Inc, above. were substantive in nature and consequently
different from s. 146(1). Accordingly, it cannot be said that the standard of
review analysis has already been performed, and I must therefore consider the
factors set out by the Supreme Court to determine the proper standard of
review.
[20]
First of
all, the decisions of Appeals Officers are protected by a stringent privative
clause and may not be appealed: see sections 146.3 and 146.4 of the Code.
This factor clearly militates in favour of substantial deference, as Parliament
has indicated its intention to shield decisions made by Appeals Officer from
intrusive review by the courts.
[21]
The
purpose of Part II of the Code is set out in section 122.1, which states
that “[t]he 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”. In the words of my colleague Justice Russell, “[t]he
thoroughness of the statutory scheme embodied by Part II of the Code has been
found to indicate that a high level of deference to decisions or direction
under this Part is appropriate…” (P&O Ports Inc. at para. 16).
[22]
The most
important factor to consider in determining the applicable standard of review
is the relative expertise of the tribunal. Consistent with the purpose of Part
II of the Code, the expertise of appeals officers lies in finding
whether circumstances in a workplace violate the purposes of the Code. This
is a fact-intensive determination, as reflected by the wide powers of
investigation and inquiry conferred on Appeals Officers by section 146.2 to
gather evidence. It is on account of this fact-finding mission, which is at
the core of their jurisdiction to determine whether a workplace is safe, that
appeals officers have been found to have relatively more expertise than this
Court.
[23]
But the
nature of the question at hand does not engage the dangerousness of a workplace
and, by way of consequence, the expertise of the appeals officers. The
statutory interpretation of s. 146.1, and more precisely the determination of
the point at which the thirty day time limit starts running, is not a context
specific issue. It is essentially a legal issue, over which the appeals
officers have no comparative advantage in terms of expertise or experience
vis-à-vis this Court.
[24]
Indeed,
the issue raised in the application at bar bears much resemblance with the
question that was recently examined by the Federal Court of Appeal in Canada (Attorney General) v. Mowat, 2009
FCA 309, [2009] F.C.J. No. 1359. At issue in that case was the Canadian Human
Rights Tribunal’s finding that it had the authority to award costs, under s.
53(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Writing for
a unanimous court, Justice Carolyn Layden-Stevension stated:
43. There is no debate that the Tribunal
is a specialized one in relation to matters of human rights. However, the
concern is not with either general or specialized expertise. Rather, it is with
the Tribunal’s expertise in relation to the specific issue before it. I do not
believe that the nature of the question at hand engages the human rights
subject matter in which the Tribunal has expertise.
44. This is not a context-specific
setting. There is no factual component entailed in the analysis. Expertise in
human rights is not required and does not assist in the interpretation of the
narrow question arising from the provision. The Tribunal’s authority to award
costs of a proceeding to a successful complainant has nothing to do with the
substance of human rights. Rather, the Tribunal must determine a pure question
of law, specifically, one that determines the bounds of its authority. The
Tribunal has no institutional or experiential advantage over the court and is
no better-positioned than the court in this respect.
[25]
Moreover,
I am also of the view that the proper interpretation of s. 146(1) calls for
certainty and consistency. In other words, it is hard to see how two opposite
ways to compute the thirty day time limit can both be held as reasonable: see Canada (Attorney General) v. Mowat, above, at para.
45, quoting with approval Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491, [2009] O.J.
No. 2524, at para. 48. Employers, employees and trade unions that feel
aggrieved by a direction issued by a health and safety officer under Part II of
the Code are entitled to know with precision the delay for appealing
such direction and, conversely, at which point in time that direction has
become final. To that extent, I therefore find that the interpretation of s.
146(1) of the Code is not only a question that is outside the
specialized area of the Appeals Officers’ expertise, but is also a question of
general law.
[26]
For all of
the foregoing reasons, I am therefore of the view that the applicable standard
of review is correctness. It follows that no deference is owed to the Appeal
Officer’s decision; if the Court disagrees with his determination, it ought to
substitute its own view of the correct answer.
B. Did the Appeals Officer err
in his interpretation of s. 146(1) of the Code?
[27]
Counsel
for the Respondent submitted that the Appeals Officer’s decision is supported
by the principle set out in s. 12 of the Interpretation Act, R.S.C.
1985, c. I-21 that statutes are to be interpreted in a fair, large and liberal
way so as to ensure the attainment of their objectives. In the case at bar, it
is contended that s. 146(1) should be interpreted so as to provide CUPW with a
meaningful opportunity to review and assess whether the Health and Safety
Officer’s directions appropriately gave effect to the duties of the joint policy
and workplace health and safety committees under the Code.
[28]
The
problem with this argument is that it is premised upon the assumption that
there is an ambiguity in the wording of s. 146(1) as to the moment where the 30
day time limitation starts to run. But there is no such ambiguity in my view. Section
146(1) states “within thirty days after the date of the direction being issued
or confirmed in writing”. Contrary to the Appeal Officer’s interpretation,
there is no indication whatsoever that the confirmation has to do with the
reception of communication of the direction to the concerned parties. Both
“issued” and “confirmed in writing” refer to acts by the person rendering the
direction; that is, the direction may be appealed within 30 days of the direction
being issued by the Health and Safety Officer, or within 30 days of the
direction being confirmed in writing by the Health and Safety Officer.
[29]
The
relevant question is not when the direction was confirmed in writing to
the union, but rather when it was issued or confirmed in writing by the
Health and Safety Officer issuing the direction. There is no question that the
direction was both issued and confirmed in writing on December 23, 2008. In
fact, CUPW knew that HSO Dubé’s decision was forthcoming. On December 19, 2008,
HSO Dubé sent an e-mail to the parties advising that the “complaint had been
resolved”. While the failure to see a direction may, in the proper
circumstances, be a factor considered by the Tribunal in exercising its
remedial authority to extend time limits pursuant to s. 146.2(f), it does not
as a matter of law delay the starting point at which the 30-day limitation
period begins to run.
[30]
Had
Parliament intended the delay to start running from the communication of the
decision by the federal agency to the affected party, it could have used
language to that effect. Section 18.1(2) of the Federal Courts Act,
R.S.C. 1985, c. F-7, for example, provides that the thirty day time limit runs
from the time the decision or order was first “communicated by” the federal
board or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly
affected by it. In that section, the emphasis is clearly on the party affected
by the decision. Moreover, “communicated by…to…” is a wording that necessarily
implicates a sender and a receiver, whereas “issued or confirmed in writing”
refers only to the person who makes the decision and not to the person affected
by the decision.
[31]
The
Respondent also relied on the legislative history of s. 146(1). It is true that
Parliament modified the starting point of the delay from “the date of the
direction” to “after the date of the direction being issued or confirmed in
writing”, but this change in wording does not support the Respondent’s position
that Parliament thereby intended to change the starting point of the time limit
from the date of the direction to the date it was actually received by the
parties. Had this been Parliament’s intention, it could have been stated more
explicitly, as already mentioned. Moreover, there is a far more satisfying
explanation for the amendment made in 2000. As illustrated by the decision of
this Court in Brink’s Canada Ltd. v. Canada (Labour, Regional Safety Officer) (1994), 84 F.T.R. 142, [1994] F.C.J. No. 1328, there
was an ambiguity in the previous version of s. 146(1) as to whether the delay
started to run from the issuance of the oral or of the written direction. With
the current version of that section, it is now clear that the delay starts from
the later of the two events.
[32]
The
interpretation proposed by the Respondent would also make section 146.2(f)
redundant. Added in 2000, this provision allows an Appeals Officer to extend
the time limitation when appropriate. This provision was obviously inserted to
relieve the harshness that could result from a strict application of the 30-day
delay. If s. 146(1) was to be interpreted in such a way as to allow an Appeals
Officer to extend the delay when external circumstances prevented a party from appealing
within that 30-day period, there would be no need for the remedial power found
in s. 146.2(f).
[33]
Counsel
for the Respondent also submitted that all appellants should have a meaningful
opportunity to benefit from the thirty day period to evaluate and undertake an
appeal of an HSO’s direction. It would be unfair and inequitable, he argued, if
certain appellants have their appeal period truncated because of a delay in
notification of an HSO’s direction. But this is precisely why s. 146.2(f) has
been enacted. If, for some reasons beyond the control of a party – a delay in
the mail, for example – the right to appeal cannot be exercised within the
30-day period, an Appeals Officer has the authority to extend that delay.
[34]
The
Respondent is correct in stating that the general objectives of the Code,
and more particularly of its Part II, are the protection, prevention and
promotion of occupational health and safety. But this is not sufficient to
support the Appeals Officer’s interpretation. Parliament no doubt intended to
promote these interests, and created different mechanisms to do so, one of which
is the right to appeal. One of the rules governing such an appeal is the time
limitation period. Section 146(1) aims to provide some foreseeability in that
procedure and to set out clearly the point at which a direction issued by a
health and safety officer becomes final. Time limitation to file an appeal,
just as the time limitation to file an application for judicial review, exists
to protect the public’s interest in the finality of decisions.
[35]
The
Appeals Officer’s interpretation of section 146(1) would nullify the foreseeability
purpose of the time limitation period. If this were a correct interpretation of
the law, a party could artificially extend its time limits by wilfully preventing
the delivery of a direction through inadvertence or negligence. The Appeals
Officer’s interpretation would also raise the possibility of two parties having
different appeal deadlines for the very same direction, based on the actions of
the defaulting party. No party should be permitted to circumvent statutory time
limits by actions that are solely within its control.
[36]
I am
therefore of the view that the interpretation of section 146(1) by the Appeals
Officer is incorrect. Indeed, to interpret the phrase “confirmed in writing” as
referring to the moment when the direction is confirmed and received by CUPW is
an interpretation that the statute cannot reasonably bear and that falls
outside the range of acceptable statutory interpretation. Accordingly, the
decision meets neither the test of reasonableness nor that of correctness.
C. Should the Court decline
to review the Appeals Officer’s interlocutory decision?
[37]
Counsel
for the Respondent submitted that the Court should decline to exercise its
discretion to review the Appeals Officer’s interlocutory decision because this
would have been an appropriate case for him to exercise his discretion to
extend the time limit if he had found the appeal untimely under s. 146(1). It
was also suggested that this Court should refuse to intervene on the basis of
prematurity.
[38]
The first
argument is without merit. Despite being invited by CUPW, by way of an
alternative argument, to consider the possibility of extending the time limit
on the basis of the significance of the appeal and of the legal issues for the
parties, the short delay involved and the existence of a prima facie
case, the Appeals Officer declined to rely on s. 146.2(f) and preferred to
anchor his decision solely on the basis of his interpretation of s. 146(1). The
CUPW cannot now defend the Appeals Officer’s decision on a ground that he did
not even consider. On judicial review, a reviewing Court is only concerned with
the decision actually rendered and its conformity with the law and the facts, and
should refrain from deciding the opportunity of an alternative decision that a
tribunal could have made.
[39]
CUPW’s second
argument cannot stand either. It is trite law that judicial review of
interlocutory decisions should only be undertaken in exceptional circumstances.
Several reasons militate in favour of not intervening until a tribunal has
issued a final decision. These reasons include the risk of the fragmentation of
the process and the likelihood that such intervention will lead to additional
costs and delays. As well, judicial review of interlocutory decisions risks
wasting judicial resources, as judicial review applications may become
unnecessary following a tribunal’s decision on the merits: see, for ex., Greater
Moncton International Airport Authority v. Public Service
Alliance of Canada, 2008 FCA 68, [2008] F.C.J. No. 312; Canada (Attorney
General) v. Brar, 2007 FC 1268, [2007] F.C.J. No. 1629.
[40]
In the
present case, I believe there are special circumstances justifying the judicial
review of the Appeals Officer’s decision, despite its interlocutory nature. First
of all, if the Appeals Officer decides to hear an appeal that is time barred,
the continuation of the procedure would be costly in time and money to Canada
Post and to the system as a whole, and this waste of time and resources could
not be compensated. Furthermore, a judicial review of the final decision could
not address any potential error in the early decision to accept the appeal as
timely. In those circumstances, the factors weighing against the Court’s early
intervention do not outweigh the potential adverse consequences of the Court’s
declining to intervene. The judicial economy principle is better served by
putting an end to the appeal procedure at this early stage.
[41]
For all of
the foregoing reasons, this application for judicial review is therefore
granted, with costs awarded to the Applicant as per Tariff B, mid Column III.
ORDER
THIS COURT ORDERS that this application for judicial
review is allowed. The interlocutory decision of Appeals Officer Lafrance dated
April 17, 2009 is quashed and set aside. The Applicant is entitled to its
costs as per Tariff B, mid Column III.
“Yves
de Montigny”
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