Date: 20130718
Docket: T-887-12
Citation: 2013 FC 797
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 18, 2013
PRESENT: The Honourable Mr. Justice
Roy
BETWEEN:
DAVID LAROCHE
Applicant
and
ATTORNEY GENERAL OF
CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal Courts
Act, RSC 1985, c F-7, of the decision of an appeals officer of the
occupational Health and Safety Tribunal Canada (the Tribunal), dated
April 4, 2012, regarding a refusal to work if danger filed by the
applicant under section 128 of the Canada Labour Code, RSC 1985, c
L-2 (the Code). This is the second application for judicial review resulting
from this refusal to work.
Background
[2]
A
brief history of the legal proceedings to date is necessary.
[3]
On
March 13, 2009, when asked to participate in a search to be conducted by
the Service de Police de la Ville de Montréal, the applicant, who is an
employee of the Canada Border Services Agency (the CBSA), refused, after being
informed that he could not carry his [translation]
“defensive tools” (a truncheon, handcuffs, pepper spray and a fire arm). On the
same day, the applicant filed a refusal to work, relying on section 128 of
the Code. The relevant provision of this section reads as follows:
|
128.
(1) Subject to this section, an employee may refuse to use or operate a
machine or thing, to work in a place or to perform an activity, if the
employee while at work has reasonable cause to believe that
(a) the use or
operation of the machine or thing constitutes a danger to the employee or to
another employee;
(b) a condition
exists in the place that constitutes a danger to the employee; or
(c) the performance
of the activity constitutes a danger to the employee or to another employee.
|
128. (1) Sous réserve des autres dispositions du
présent article, l’employé au travail peut refuser d’utiliser ou de faire
fonctionner une machine ou une chose, de travailler dans un lieu ou
d’accomplir une tâche s’il a des motifs raisonnables de croire que, selon le
cas :
a) l’utilisation
ou le fonctionnement de la machine ou de la chose constitue un danger pour
lui-même ou un autre employé;
b) il est
dangereux pour lui de travailler dans le lieu;
c) l’accomplissement
de la tâche constitue un danger pour lui-même ou un autre employé.
|
[4]
Section
124 of the Code imposes a general obligation on the CBSA as an employer to
ensure that the health and safety at work of every person employed by it is
protected. An employee may refuse to work when he or she is dissatisfied with
the measures taken to ensure his or her protection. If there is a danger,
within the meaning of the Code, the refusal is justified.
[5]
The
investigation into the refusal was conducted by a health and safety officer. On
May 1, 2009, she concluded that there had been no danger within the
meaning of the Code.
[6]
This
decision was appealed, and the appeal decision was made by an appeals officer
on September 29, 2010. The initial decision was confirmed.
[7]
The
applicant applied for a first judicial review of this decision. That
application for judicial review was allowed (Laroche v Canada (Attorney
General), 2011 FC 1454, 401 FTR 287). The Court ordered that the entire
matter be “referred back to the appeals officer so that she [could] complete
her analysis in accordance with the reasons of this judgment”.
[8]
Pursuant
to the judgement of this Court, the same appeals officer resumed her analysis where
she had left off, without convening a hearing or receiving additional submissions.
The appeals officer essentially improved her analysis as required by the Court,
without, however, changing the initial conclusion she had reached: there had
been no danger within the meaning of the Code. This decision was made on
April 4, 2012.
[9]
IT
is of this later decision that the applicant is seeking judicial review.
Reasons
[10]
To
understand the situation before the Court, one must return to the reasons for
the appeals officer’s first decision, dated September 29, 2010.
[11]
To
begin with, the officer recognizes that the definition of “danger” is at the
heart of the problem. She refers to section 128 and quotes the definition
of danger given by the Code at subsection 122(1):
|
122. (1) In
this Part,
“danger” means any existing or potential hazard or
condition or any current or future activity that could reasonably be expected
to cause injury or illness to a person exposed to it before the hazard or
condition can be corrected, or the activity altered, whether or not the
injury or illness occurs immediately after the exposure to the hazard,
condition or activity, and includes any exposure to a hazardous substance
that is likely to result in a chronic illness, in disease or in damage to the
reproductive system;
|
122. (1) Les définitions qui suivent s’appliquent
à la présente partie.
« danger » Situation, tâche ou risque — existant ou
éventuel — susceptible de causer des blessures à une personne qui y est
exposée, ou de la rendre malade — même si ses effets sur l’intégrité physique
ou la santé ne sont pas immédiats — , avant que, selon le cas, le risque soit
écarté, la situation corrigée ou la tâche modifiée. Est notamment visée toute
exposition à une substance dangereuse susceptible d’avoir des effets à long
terme sur la santé ou le système reproducteur.
|
[12]
Not
all possible hazards represent a danger under the Code. Rather there must be a
reasonable possibility of danger (Verville v. Canada (Correctional Services),
2004 FC 767, 253 FTR 294, particularly paragraph 36). This understanding
of the test is not disputed by the parties in this matter.
[13]
Relying
on the evidence, the appeals officer identified two types of hazard. I will
reproduce part of paragraph 110 of her decision, where the two types of hazard
are identified:
i.
if the location had
not been properly secured beforehand and an armed individual was at the
location;
ii.
if the police
officers did not properly guard the location and an armed individual was within
the outside perimeter of the location or managed to enter the location.
[14]
Consequently,
a public servant participating in a search is immediately exposed to a hazard
if the location has not been secured beforehand. The public servant is also
exposed to a hazard if, even when the location has been secured beforehand, a
security perimeter is not maintained. If there is a reasonable possibility of a
hazard, there is danger within the meaning of section 122, and the public
servant would be justified in refusing to work, as permitted under
section 128 of the Code. Conversely, if no danger within the meaning of
the Code exists, the refusal to work is not warranted.
[15]
The
Tribunal appeals officer concluded that there was no danger in regard to the
two types of hazard identified. As to the first type of hazard, the police
forces always communicate with the customs officers and notify them to report
to the location after it has been secured. This conclusion was not challenged
on review.
[16]
Regarding
the second type of hazard, specifically the security perimeter, the appeals
officer found that the possibility of hazard did not reach the level of
reasonable possibility. She arrived at this conclusion because CBSA officers
are free to decide not to enter an allegedly secure perimeter if they are not
satisfied or have the slightest doubt that the perimeter is not properly
guarded. As a result, neither type of hazard posed a danger.
[17]
It
was on the second type of hazard that the application for judicial review was
successful in this Court, the Court being satisfied with the decision on the
first type.
[18]
Relying
on the Federal Court of Appeal’s decision in Martin v Canada (Attorney
General), 2005 FCA 156, the Court was not satisfied with the analysis
because the appeals officer had not had regard to relevant evidence.
[19]
As
the Court noted, CBSA officers may well find perimeter surveillance measures to
be sufficient and agree to enter a search location, but what would happen if
these measures were relaxed or disappeared in the course of the search? With
regard to the second type of hazard, two quite distinct situations must be
considered: first, the existence of a perimeter when the customs officer
embarks on the search and, second, the existence and maintenance of this
perimeter during the search.
[20]
The
appeals officer’s failure to consider this second situation (maintenance of the
perimeter during the search) made her decision unreasonable and was therefore
fatal. In other words, if a CBSA officer’s option to refuse to enter the search
location because it does not seem safe ensures that officer’s safety, the perimeter
must also remain secure during the search. This situation was not even examined
by the appeals officer, who was satisfied that the location had been secured
and that an adequate perimeter had been established such that there was no
reasonable possibility of danger. The dynamic nature of a search was not
sufficiently considered.
[21]
However,
the remedy chosen by this Court was of limited scope, as I noted previously. Noting
that there was ample evidence relevant to examining the dynamics of a search,
rather than just the static conditions present at the beginning of a search,
the Court decided to refer the matter back to the appeals officer for an
examination of these dynamics.
[22]
Paragraph 39
of this Court’s decision reads as follows:
[39] . . . This
component, which had been raised by the applicant, was just as relevant and it
was overlooked by the appeals officer. Yet, several pieces of evidence were
relevant to assessing and measuring the risk of injury associated with the
possibility that one or more persons could enter the premises during the
operation, in particular:
1. The nature of the sites where the
searches were carried out.
2. The testimony of the applicant and his
colleague L. Moreau who stated that during their searches of private homes they
were alone in most of the rooms in which they worked.
3. The testimony of the applicant that he
had been working alone in a basement with a single point of access and that
when he found the object of the search and called the police officers working
upstairs, several minutes went by before they came down to find him.
4. The testimony of the applicant that for
a search conducted on an exterior site, the police officers stayed in their car
and that he had been offered no close cover.
5. The testimony of L. Moreau that he had
never felt or been given the impression that the police officers present at the
location were there to protect him during his searches.
6. The testimony of the applicant and L.
Moreau that no police officer escorted them from or to their vehicle as they
approached and left the search location, and more specifically, the testimony
of the applicant that he had once been obliged to return to his vehicle to
collect some detection tools during one of the searches.
7. The testimony of R. Groulx, a member of
the RCMP, regarding the dynamic nature of the operations and the possibility
that the circumstances could change during an operation.
8. The testimony of the applicant and L.
Moreau on the training they received to defend against attacks with their defensive
equipment and their vulnerability if they were to be attacked when they did not
have their defensive equipment.
9. The testimony of Y. Patenaude of the
SPVM who stated that if the outside perimeter of a search location is not well
guarded, anyone can enter the location.
[23]
As a
result, the decision to be made by the appeals officer was limited to this
second situation, that is, the maintenance of a secure perimeter, which she had
failed to examine in her first decision. This examination was based on the
evidence that had been submitted; the analysis was to be completed. This is
what the appeals officer was to focus on, and it is this otherwise narrow
decision of which the applicant is seeking judicial review.
[24]
In
her second decision, the appeals officer completed the analysis. She chose to
reproduce many paragraphs from her first decision, which explains why the
second decision contains almost 150 paragraphs. The actual analysis requested
by this Court covers only a few paragraphs, at the end of which the appeals
officer concludes:
[translation]
[125] In light
of the above, it is my opinion that, on March 17, 2009, the possibility
that the location D. Laroche was to enter to carry out his search was not
properly guarded by the police force in order to ensure that no armed
individuals were found in the outside perimeter or could enter the location
while D. Laroche was carrying out his task was a mere possibility, but not
a reasonable one.
Analysis
[25]
Two
issues are before this Court. First, did the appeals officer breach procedural
fairness by declining the request to hold a hearing following the judgment of
this Court? Second, is the appeals officer’s second decision reasonable? I will
examine these issues in the order in which they were presented.
Procedural fairness
[26]
The
applicant complained about a breach of procedural fairness when the appeals
officer declined the request to hold a hearing following the first judgment of
this Court and before making her second decision. It is understood that this
issue is reviewable on a correctness standard (Sketchley v Canada (Attorney
General), [2006] 3 FCR 392).
[27]
In
my opinion, the procedural fairness argument has no merit. There are several
reasons for this conclusion.
[28]
The
scope of the previous decisions and judgments is important. The matter before
this Court only concerns cases where police forces seek assistance from the
Canada Border Services Agency (the Agency) in carrying out searches, presumably
because the Agency has resources these police forces do not have. We are
speaking of assistance here, as the search to be carried out does not fall
under the mandate conferred by the Customs Act, the Excise Act or
the Excise Act, 2001. Public servants with the powers of officers under
these statutes are peace officers within the meaning of the definition of “peace
officer” provided in section 2 of the Criminal Code. When public
servants have the characteristics of a peace officer, they have the statutory
powers and protections conferred on peace officers.
[29]
In
situations where they are only providing assistance, public servants are not
peace officers. The Agency therefore required that public servants who agree to
provide police forces with assistance not carry their defensive tools in such
situations since, in the Agency’s opinion, unlike peace officers in carrying
out their duties, they are not protected against civil or criminal liability. Moreover,
participation in a support operation is voluntary when a police force is in
charge of it. I acknowledge that this particular view of the status of peace
officers is not universally accepted, since the union representing the
applicant seems to have a different interpretation. Ultimately, what matters
here is that the CBSA decided that, during searches conducted for purposes
other than the statutes it is tasked to enforce, its officers may not carry
certain equipment that they would be able to carry if the operation was the
Agency’s responsibility.
[30]
The
review of this issue was not made any easier by the fact that the details of
the search in which the applicant was asked to participate are unknown, since
the Agency declined to participate. The matter is therefore quite theoretical. The
scope of this affair, based on the facts in evidence, is therefore restricted
to support situations. This observation is important as it provides a better
understanding of the very narrow context of the appeals officer’s decision, and
also of this Court’s judgment giving instructions to the appeals officer.
[31]
Indeed,
it is somewhat surprising that a situation where it would have been possible to
simply refuse to participate, this being an option that was available to the
applicant, resulted in a formal refusal to work under section 128 of the
Code (which, in turn, was investigated), two decisions from an appeals officer,
and now a second application for judicial review, all of this since
March 13, 2009. Again, the only issue here is the voluntary participation
of public servants of the Agency in assisting police forces in situations that
are not covered by the Agency’s mandate. Nothing more. The issue would
disappear if the Agency stopped offering such support or if its public servants
no longer participated voluntarily.
[32]
The
judgment of this Court that led to the decision under review was rendered on
December 12, 2011. Almost three months later, on March 5, 2012, the
applicant enquired about the holding of [translation]
“a hearing in the April to June 2012 period”. He received a reply the following
day. The written reply was clear, informing him that [translation] “no new hearing would be held in this matter”. The
Tribunal Registrar’s letter then referred to the judgment of this Court to
point out that the appeals officer had to complete [translation] “her analysis in light of the comments of the
Court and not re-hear the matter”. The letter concluded that the appeals
officer [translation] “[would] not
hold a new hearing in this case”. The applicant was thus warned more than once.
[33]
There
is no doubt that holding a hearing is the most sophisticated form of
participation in an administrative proceeding. The rules of procedural fairness
can be observed without holding a hearing. Yet that is what the applicant requested, and his request was
clearly refused. So, for almost three
months, he did not make any procedural fairness-related requests, and, when he
did make one, he required the highest degree of procedural fairness; his
request was decisively denied, and no more was heard of the matter. The
applicant did not make any new requests to participate in any other manner in
the exercise the Court had asked the appeals officer to perform. Is it
surprising that a decision was rendered one month later, on April 4? Had
there been a waiver, thus precluding the applicant from arguing a breach of
procedural fairness?
[34]
In
fact, the obstacle to the applicant’s argument that he should have been heard
in some way is fundamental. It lies in the judgment of this Court.
[35]
As I
attempted to explain, the judgement of this Court refers the matter back to the
decision maker because the analysis of one element of the file seems
incomplete. The record did not change, the parties made submissions on the
dynamic nature of operations such as searches, and the matter was heard. But
even though it had been heard, the matter was not decided because the response
to one of the questions was not complete.
[36]
The
applicant then wanted to be given an opportunity to make additional
submissions. By definition, there was nothing new: the analysis of one question
was incomplete.
[37]
This
is not unlike the decisions of the Supreme Court of Canada in Mobil Oil
Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR
202, and Knight v Indian Head School Division No 19, [1990] 1 S.C.R. 653 [Knight].
The obligations of procedural fairness do not extend to requiring hearings when
full exchanges have already taken place.
[38]
Canada
Lands Company CLC Ltd v Alberta (Municipal Government Board), 2008 ABQB 51, has
certain similarities with the present matter. The applicant challenged the
municipal tax assessment of certain properties by the Municipal Government
Board (MGB). An initial judicial review (2006 ABQB 293) had the following
result:
[136] The decision of the MGB as to the
amount of the assessment is set aside and I direct the MGB to reconsider the
assessment in light of these Reasons.
[39]
The
directed reconsideration was also judicially reviewed:
[2] The MGB’s reconsideration of the appeal
of the 2003 assessment did not involve a new hearing, new evidence or further
submissions. The panel wrote a new decision based solely on the record
generated at the original hearing. After reconsidering its decision, the MGB
issued MGB 009/07 on January 30, 2007, arriving at exactly the same assessment
as in MGB 101/05; namely, $52,489,000.
. . .
[9] In fact, I directed in para. 3 of my
formal order that the MGB “reconsider the assessment in light of the Reasons
for Judgment.” However, in para. 5 of that order, I left the MGB some
discretion as to the manner in which it conducted its reconsideration of the
assessment appeal. This allowed the MGB the option of conducting a
full-rehearing, rendering its decision solely on the previous record or
carrying out some form of partial re-hearing. The decision of the panel to not
hear further evidence or further submissions and to render a new decision based
solely on the record was within its discretion.
[40]
In
my opinion, the same conclusion is required in the present matter. This Court
ordered that one aspect of the question be fully analyzed. In no way did it
suggest that a new hearing or new submissions were required.
[41]
I
agree that if new evidence had been considered by the appeals officer, a new
hearing, whatever its appropriate form, would have been necessary. But if the
appeals officer had considered other evidence, she would have gone beyond the
scope of the matter and would have exceeded what was required of her by the
judgment of this Court, that is, to complete her analysis. With respect, this
was all that she was entitled to do. The matter had been heard; now was the
time to complete her analysis and not to re-open the case.
[42]
The
applicant names only one authority in support of his argument, a short excerpt
from Brown and Evans, Judicial Review of Administrative Action in Canada,
at paragraph 12:6320, entitled “Scope and Procedure of a Redetermination”:
When a tribunal reconsiders a matter either
on its own motion or following judicial review it must, of course, comply with
the duty of fairness.
[43]
The
problem is that what is at issue in the case at bar is not a redetermination. In
the previous paragraphs, the authors establish what a redetermination is:
Generally, a decision-maker may redetermine
a matter after its original decision has been set aside or declared invalid on
an application for judicial review. Thus, a tribunal may decide a dispute
for a second time where its first decision was quashed for breach of
either the duty of fairness or a statutory procedural requirement. And
despite some earlier decisions to the opposite effect, it now seems clear that
a tribunal may make a redetermination even though, when quashing the original
decision, the reviewing court did not order that the matter be remitted. This
is so because technically the effect of quashing a decision on a declaration of
invalidity is to leave the parties, and the tribunal, in the position that
they were in prior to the making of the invalid decision.
(Reference omitted. Emphasis added.)
[44]
Rather
than ordering a redetermination, this Court ordered that part of the analysis
be completed. It did not question the previous analysis; in fact, it was
satisfied with it. What remained to be considered was the dynamic nature of
searches in order to determine whether there is danger within the meaning of
the Code and how this danger can be minimized so that there is no reasonable
possibility that it would occur.
[45]
A
panoply of remedies may be ordered following a judicial review, in particular,
undoubtedly exceptional, cases even going as far as ordering specific
performance (see Canada (Public Safety and Emergency Preparedness) v LeBon,
2013 FCA 55). The only directive given was to complete the analysis: there was
no mention of reconsidering the matter or making a redetermination because of
an error. It was a question of the appeals officer finishing what she had
started—on the basis of the existing file (Francella v Canada (Attorney
General) (2003), 234 DLR (4th) 572, 313 NR 354 (FCA)).
[46]
If I
misunderstood and a redetermination was to be made, I would have concluded that
the procedural fairness argument was raised too late, much later than at the
earliest opportunity, as required by the case law.
[47]
As I
indicated previously, almost three months after this Court’s decision to refer
the matter back to the appeals officer so that she could complete her analysis,
the applicant expressed his desire for a hearing, the most stringent rule of
procedural fairness. He did not have to wait long for a reply. It arrived the
next day and was firm.
[48]
Nonetheless,
the applicant did nothing for a few weeks, and the new decision was rendered a
month later. In the words of Madam Justice L’Heureux-Dubé in Knight,
above, at page 686:
. . . Since I accept
the trial judge’s finding of facts that “everything that had to be said had
been said” (at p. 283), the requirement of the formal giving of reasons and the
holding of a hearing would achieve no more, in my respectful view, than to
impose upon the appellant Board a purely procedural requirement, against the
above-stated principles of flexibility of administrative procedure.
[49]
In
my opinion, the appeals officer was entitled to believe that the applicant was
satisfied that she simply had to complete her analysis. The reply letter was
clear (Regina v Campbell et al, [1969] 2 OR 126). This is not to suggest
that the applicant should have hurried to this Court the day after to seek a
remedy for the refusal to hold a hearing: he might have been told that such a
step was premature. Rather, the applicant’s complete silence after the
definitive refusal suggests a form of acquiescence, or at least gives the
reasonable impression that he accepted the reply.
[50]
As
everyone knows, judicial review is a discretionary remedy that can be denied (MiningWatch
Canada v Canada (Fisheries and Oceans), [2010] 1 S.C.R. 6).
[51]
In
the case at bar, the following factors all support a rejection of this remedy:
1.
the Court only
ordered the appeals officer to complete the analysis of one aspect of the
affair;
2.
all the evidence had
been heard;
3.
the parties had made
their submissions;
4.
the applicant, after
almost three months, asked for a hearing to be held, a request that was
immediately and unambiguously denied;
5.
despite this
definitive refusal, he took no further measures to seek other arrangements,
which certainly suggests a form of acquiescence; at the very least, it is
difficult at this stage to severely criticize the administrative tribunal (Mohammadian
v Canada (Minister of Citizenship and Immigration), [2001] 4 FC 85 (FCA); F.
Zonman E Co Real Estate Ltd v Toronto Real Estate Board (1982), 36 OR 724
(Ontario Divisional Court)).
[52]
In a
case with narrow parameters, including an order of this Court that simply
requires a completed analysis, in which all has been said, thus eliminating the
possibility of actual prejudice, and where the applicant did not argue his case
on time, even though he was notified by the administrative tribunal that there
would be no hearing, the balance of convenience tips in favour of an assessment
of the merit of this dispute, which dates back to March 13, 2009.
Was the decision reasonable?
[53]
The
second issue to be disposed of concerns the quality of the decision made by the
appeals officer. The issue is whether the decision was reasonable.
[54]
In
fact, the standard of review was already determined in the first judgment of
this Court, and there is no reason to depart from this decision (Canada Post
Corp v Pollard, 2008 FCA 305). The parties agree.
[55]
The
standard of reasonableness means deference towards the administrative tribunal.
Paragraph 49 of Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]:
[49] Deference in the
context of the reasonableness standard therefore implies that courts will give
due consideration to the determinations of decision makers. As Mullan explains,
a policy of deference “recognizes the reality that, in many instances, those
working day to day in the implementation of frequently complex administrative
schemes have or will develop a considerable degree of expertise or field
sensitivity to the imperatives and nuances of the legislative regime”: D. J.
Mullan, “Establishing the Standard of Review: The Struggle for Complexity?”
(2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect
for the legislative choices to leave some matters in the hands of
administrative decision makers, for the processes and determinations that draw
on particular expertise and experiences, and for the different roles of the
courts and administrative bodies within the Canadian constitutional system.
[56]
Occupational
health and safety is of course the expertise that has been developed by the
Tribunal and its appeals officer in the case at bar. The concept of “danger” under
the Code is a concept that she deals with on a daily basis. She is thus owed
considerable deference. The very nature of the concept of deference implies
that there are several acceptable outcomes, and the review court cannot
substitute its opinions for those of the administrative tribunal if the
tribunal’s opinions fall within a range of “acceptable and rational solutions”.
[57]
Paragraph
47 of Dunsmuir, above, provides the first indications of what to
consider to be satisfied that a decision is reasonable. Does the decision have
the qualities of reasonableness?
[47] Reasonableness is a deferential standard animated by the principle
that underlies the development of the two previous standards of reasonableness:
certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a
number of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[58]
The
applicant therefore had to persuade the Court that the decision was
unreasonable because it did not fall within the range of acceptable and
rational solutions. This is the burden the applicant has to discharge.
[59]
In
the matter at bar, the reasonableness of the decision must be assessed on the
basis of the second decision, rendered in response to the order to complete the
analysis. As pointed out by the applicant, and as noted previously, this new
analysis is only a few paragraphs long.
[60]
The
appeals officer was asked to consider all of the relevant evidence to determine
whether there was danger within the meaning of the Code. If there was no
danger, the refusal to work would not have been valid under section 128 of
the Code. The concept of danger is dependent on the possibility that a hazard
arises. For a danger to be the subject of a refusal to work, there must be a
reasonable possibility, which implies a measure of objectivity. Subjective fear
alone cannot satisfy this test. Consequently, the analysis that had to be
completed was to focus on the reasonable possibility that a hazard arise not
only before the search started (armed individual at the location before the
search) or once a secure perimeter has been established around the search
location, but also during the search.
[61]
On
judicial review, the quality of the decision issued as a result of this Court’s
judgment must be assessed in light of the Supreme Court of Canada’s unanimous
decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), [2011] 3 S.C.R. 708 [Newfoundland and Labrador
Nurses’ Union], where Madam Justice Abella wrote at paragraph 14:
[14] Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses - one for the reasons and a separate one for
the result . . . .
[62]
We
do not live in a perfect world, and cannot expect the reasons of a decision to
be perfect either. Here is the test a review court should impose according to
the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union,
above:
[16] Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[17] The fact that there may be an alternative interpretation of the
agreement to that provided by the arbitrator does not inevitably lead to the
conclusion that the arbitrator’s decision should be set aside if the decision
itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the
decision-maker’s reasons, and be cautious about substituting their own view of
the proper outcome by designating certain omissions in the reasons to be
fateful.
(Emphasis
added.)
[63]
The
appeals officer clearly understood the task imposed on her by this Court. She
weighed the submitted evidence. The various assertions identified by this
Court, and which I reproduced at paragraph 19 of my reasons, are
outweighed by other evidence that tends to establish and support the conclusion
reached by the appeals officer that we are not dealing with a reasonable
possibility but a mere possibility.
[64]
For
example, while it is undoubtedly true that the circumstances surrounding an
operation can change very quickly (testimony of a member of the RCMP) and that
anyone can enter a search location if the perimeter is not being guarded
(police officer of the Service de police de la Ville de Montréal), the evidence
also revealed that not only no such incident had ever occurred during searches
performed by Agency officers, but also the applicant himself conceded that the
possibility of them occurring was low. The fact that no such incident has ever
occurred does not show that the possibility is not a reasonable one, but the
applicant’s own concession tends to confirm that a secure perimeter will
continue to be secure given the police presence at the search location. Moreover,
officers may refuse to enter a search location if no inspection has been
carried out or if the perimeter is not secure at the start of the search, as
this Court accepted.
[65]
The
same logic applies at this stage of the analysis. The appeals officer pointed
out that CBSA officers always have the option of ceasing their duties if they
are no longer satisfied with the safety of a location even when, as
acknowledged by the applicant and a colleague of his, [translation] “armed police officers always remained at the
location where they were working to guard the location” (paragraph 123)
with the support of a detailed plan prepared in advanced.
[66]
Searches
are undoubtedly variable operations. The flexibility conferred on officers who
assist police forces is intended to minimize the hazards presented by the large
variety of circumstances that can occur. The possibility that a danger materializes
is a very real one. But what counts here is reasonable possibility. The
possibility is minimized by an intervention plan, the police officer’s duty to
guard the location and CBSA officers’ option to decide on site to state their
dissatisfaction with the measures taken in light of the circumstances.
[67]
In
my opinion, the appeals officer, based on her analysis of the evidence
provided, could reasonably conclude that, in the circumstances, there was only
a mere possibility that an individual, armed or not, might manage to enter the
search location, after the location had been secured and a perimeter had been
established, despite the location being guarded during the search according to
the operational plan. Having paid respectful attention to the decision maker’s
reasons, I understand the basis of her decision. The conclusions of this
decision fall within the range of acceptable and rational solutions. They have
the qualities of reasonableness, in that the decision-making process was
justifiable, transparent and intelligible.
[68]
Ultimately,
the applicant wishes to be able to carry his [translation]
“defensive tools” during any search, because of his subjective fear of a
potential danger. He appears to claim that anyone at a search location should
be armed. If this were necessary, many other individuals, certainly not all of
them peace officers, who assist police forces in searches because of their
particular area of expertise, should also carry [translation] “defensive tools”. But being at a search
location to provide technical support is quite different from the role played
by peace officers who conduct the search. When security measures are taken, and
particularly when the person providing support may withdraw if these measures
seem inadequate before or during the search, I fail to see how the conclusion
of the occupational health and safety expert, the appeals officer, could be
characterized as being unreasonable. Yet that was the burden on the applicant. He
did not discharge it.
[69]
Consequently,
the application for judicial review must be dismissed.
JUDGMENT
The application for judicial review of the
decision by Katia Néron, appeals officer of the Occupational Health and Safety
Tribunal Canada, dated April 4, 2012, is dismissed. With costs.
“Yvan Roy”
Certified true translation
Johanna Kratz, Translator
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