Date: 20110125
Docket: A-101-10
Citation: 2011 FCA 24
CORAM: SHARLOW
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Appellant
and
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] The appellant, Canadian Union of Postal Workers (the union),
appeals from the order of a Federal Court judge (the judge) allowing Canada
Post Corporation’s (Canada Post) application for judicial review of a decision
of an appeals officer of
the Occupational Health and Safety Tribunal Canada under Part II of the Canada
Labour Code, R.S.C. 1985, c. L-2 (the Code). The judge’s reasons are
reported at 2010 FC 154, 364 F.T.R. 177.
[2] Canada Post
raised an objection before the appeals officer that the limitation period
within which the union could appeal the direction of a health and safety
officer had expired. Interpreting subsection 146(1) of the Code, the appeals
officer concluded that the union’s appeal was timely. On judicial review of
that determination, the judge concluded that the applicable standard of review
with respect to the appeals officer’s decision is correctness and that the
appeals officer’s determination was neither correct nor reasonable.
[3] For the
reasons that follow, I would allow the appeal, set aside the judge’s order and
restore the appeals officer’s determination.
[4] The matter
began when the union filed a complaint alleging that Canada Post had
contravened various provisions under Part II of the Code, which concerns
occupational health and safety. I need say no more about the facts because the
issues on appeal are narrow. The parties agree, for purposes of this appeal,
that the health and safety officer’s letter dated December 23, 2008 and
forwarded to the union on the same day, is the document pertinent to the
appeals officer’s determination. It is also common ground that, due to the
closure of the union’s offices over the holiday season, the union did not
receive the document until its offices reopened on January 5, 2009.
The Statutory Provisions
[5] The
text of the statutory provisions referred to in these reasons is attached as
Schedule “A”. It is the interpretation of subsection 146(1) that is at issue
and, for ease of reference, it is reproduced below. I should note that section
146.2 grants various powers to appeals officers, 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.”
|
Canada
Labour Code
(R.S.C.
1985, c. L-2)
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.
|
Code canadien du travail
(L.R.C. 1985, c. L-2)
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.
|
The Appeals Officer’s
Decision
[6] As stated
earlier, the appeals officer concluded that the union’s appeal was timely. He
noted that the Interpretation Act, R.S.C. 1985, c. I-21 provides that
statutes must be interpreted in a fair, large and liberal manner so as to
ensure the attainment of their objectives (section 12). He considered the
interpretation of the phrase “confirmed in writing” to be the key issue and
concluded that the aggrieved person must be in receipt of the written
confirmation before the appeal period begins to run. He considered the union’s
claim, that it received the letter only on January 5, 2009, to be credible and
found that it had instituted its appeal within the 30-day time limit.
The Judge’s Decision
[7] The
judge conducted a standard of review analysis and concluded that the applicable
standard of review is correctness. He reasoned that the determination of a time
limitation was not within the appeals officer’s expertise and that the question
was one that called for “certainty and consistency.” He found no ambiguity in
the legislation and concluded that the phrase “confirmed in writing” does not
contemplate receipt of the health and safety officer’s decision. In the judge’s
view, the relevant question was not when the safety officer’s decision “was
confirmed in writing to the union.” Rather, it was when the decision
“was issued or confirmed in writing by the Health and Safety officer.”
Although failure to receive a decision could be a factor for consideration in
the exercise of discretion under paragraph 146.2(f) of the Code, it did not, in
and of itself, delay the commencement of the subsection 146(1) limitation
period. The judge held that the appeals officer’s interpretation was both
incorrect and unreasonable. A reasonable interpretation would focus on the
health and safety officer’s confirmation in writing, not on the complainant’s
reception of it.
Issues
[8] There
are two issues:
(a)
whether
the judge erred in determining the applicable standard of review; and
(b)
whether
the judge erred in determining that the appeals officer’s interpretation of
subsection 146(1) was unreasonable.
The Standard of Review
on Appeal
[9] On
appeal from judicial review, the appeal court is to determine whether the judge
selected the correct standard of review and applied the standard correctly: Prairie
Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans),
[2006] 3 F.C.R. 610 at para. 14 (C.A.), leave to appeal refused, [2006]
S.C.C.A. No. 197; Telfer v. Canada (Revenue Agency),
2009 FCA 23, [2009] D.T.C. 5046 at paras. 18-19.
Whether the Judge Erred
in Determining the Applicable Standard of Review
[10] The union
argues that the judge erred when he failed to rely on existing jurisprudence
where the applicable standard of review in relation to appeals officers’
decisions under the Code was held to be reasonableness. Specifically, the union
points to this Court’s decision in Martin v. Canada (A.G.),
[2005] 4 F.C.R. 637 (C.A.) (Martin) and the Federal Court decision in P&O
Ports Inc. v. International Longshoremen’s and Warehousemen’s Union,
Local 500, 2008 FC 846, 331 F.T.R. 104 (P&O Ports). Canada Post
maintains that Martin preceded the Supreme Court’s decisions in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 (Dunsmuir) and Canada (Minister
of Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339
(Khosa) and is therefore not determinative, while P&O Ports
concerned a different issue.
[11] It is true
that Dunsmuir teaches that a standard of review analysis is not required
where the jurisprudence has “already determined in a satisfactory manner the
degree of deference to be accorded with regard to a particular category of
question” (para. 62). Both Martin and P&O Ports concerned an
appeals officer’s analysis of “danger” within the meaning of the Code. Martin
concerned an additional issue not relevant to this matter. The judge
acknowledged and distinguished both authorities on the basis that the nature of
the questions under consideration in those cases was different than that before
him. Given the instruction at paragraph 54 of Khosa that a standard of
review analysis is required “when jurisprudential categories are not
conclusive,” I conclude that the judge made no error in proceeding as he did.
[12] The union
further argues that the judge erred in failing to find that the applicable
standard of review is reasonableness. I agree with the union in this respect. I
reject Canada Post’s submission that the question is one which goes to
jurisdiction. Dunsmuir cautions that “jurisdiction is intended in the
narrow sense of whether the tribunal had the authority to make the inquiry”
(para. 59). Canada Post conceded, at the hearing of the appeal, that the
appeals officer has the statutory authority to interpret the impugned
provision. The judge correctly observed, at paragraph 18 of his reasons, “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.”
Consequently, the issue is not one of jurisdiction, as it is now understood.
[13] The judge
acknowledged the presumption discussed at paragraph 25 of Khosa to the
effect that a tribunal’s interpretation of its enabling legislation is normally
reviewable on a standard of reasonableness. He noted the strong privative
clauses in sections 146.3 and 146.4 of the Code. He discussed the purpose of
Part II of the Code (to prevent accidents and injury to health arising out of,
linked with or occurring in the course of employment) and recognized that the
thoroughness of the statutory scheme indicates a high level of deference. He
considered the expertise of the appeals officer to be greater than that of the
court with respect to fact-intensive determinations in relation to
investigations and inquiries under the Code. However, he found that the nature
of the question at issue was not context specific. Relying on the decision of
this Court in Canada (A.G.) v. Mowat, 2009 FCA 309,
312 D.L.R. (4th) 294, leave to appeal granted, [2009] S.C.C.A. No. 545,
judgment pending (Mowat), he concluded that the nature of the question
is one of general law beyond the expertise of the appeals officer and calls for
consistency. Thus, it demands a standard of review of correctness.
[14] It seems to
me, but for Mowat, the judge likely would have determined the standard
of review to be reasonableness. I say this because, with the exception of the nature
of the question at issue and the appeals officer’s expertise relative to that
of the court in answering it, all factors analysed by the judge pointed to
deference. In Mowat, the question at issue was determined to be one of
central importance to the legal system as a whole and outside the
specialized area of the tribunal’s expertise. In such circumstances, a standard
of review of correctness is applicable: Dunsmuir at para. 54. In Mowat,
neither the existing inconsistent interpretations nor the lack of a privative
clause was determinative.
[15] In this case,
although the judge found the interpretation of subsection 146(1) to be a
question of general law, he did not find it to be one of central importance to
the legal system as a whole. It would be difficult for him to do so. With
respect, in my view, the interpretation of the provision gives rise to a
discrete question that falls within a single step of a complex administrative
scheme. It is a question of law arising out of the appeals officer’s home statute
and it was not suggested that it would have important ramifications on any
other aspects of the legal system. The union maintained that the provision is
not one of central importance to the legal system and, at the hearing of this
appeal, Canada Post acknowledged and accepted the accuracy of that position.
[16] Further,
although the judge believed that the provision should be interpreted
consistently, it had not been subject to inconsistent interpretations.
Demanding a consistent answer for any question of general law may result in a
correctness standard being applied to nearly all legal questions, whether or
not they are of central importance to the legal system, whether or not
conflicting lines of jurisprudence have arisen with respect to them, and
whether or not the questions involve the interpretation of the decision maker’s
home statute. This cannot be right for, as noted above, a tribunal’s
interpretation of its constitutive statute generally is entitled to deference: Khosa
at
para. 25.
[17]
Additionally, determination of the applicable standard of review is
accomplished by establishing legislative intent: Dunsmuir at para. 30; Khosa
at para. 30. Although the existence of a privative clause is not determinative,
it provides “a strong indication of legislative intent”: Dunsmuir at
para. 31. Section 146.3 of the Code provides that an appeals officer’s decision
is final and shall not be questioned or reviewed in any court. Section 146.4 is
expressed in even stronger terms. Neither section indicates a distinction is to
be made according to the nature of the question or provision.
[18] In my view,
the comprehensive statutory scheme is designed, in part, to facilitate the
resolution of health and safety matters expeditiously. Given the presumption owing
to appeals officers in their interpretation of the home statute, the discrete
nature of the question at issue, the detailed and comprehensive statutory
scheme, the expertise of the appeals officers working within that scheme and
the existence of strong privative clauses, reasonableness is the appropriate
standard of review. The interpretation of the impugned provision does not rise
to the level of any recognized exception to the general rule of deference.
Whether
the Judge Erred in Determining that the Appeals Officer’s Interpretation of
Subsection 146(1) was Unreasonable
[19] After
adopting a correctness standard of review, the judge found the appeals
officer’s interpretation of subsection 146(1) to be incorrect. He also found
the interpretation to be unreasonable. For convenience, I again set out the
provision in issue.
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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.
|
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.
|
[20] For an appeal
to be timely, it must be initiated “within thirty days after the date of the
direction being issued or confirmed in writing.” As noted earlier, the
pertinent document was dated and forwarded to the union on December 23, 2008.
The heart of the interpretive task fell to be resolved by asking at what stage
the document effected confirmation in writing.
[21] The appeals
officer determined that confirmation occurred on January 5, 2009 when the union
opened its offices after the holiday season and received the document. The
judge disagreed. On a correctness standard, he concluded, “there is no
indication whatsoever that the confirmation has to do with the reception of
communication of the direction to the concerned parties.” In the judge’s view,
there is no ambiguity in the legislation. While the failure to see the document
might be a factor for consideration in the exercise of the appeals officer’s
discretion to extend the time for appealing under paragraph 146.2(f), it did
not delay the commencement of the limitation period. The judge determined that
to interpret the phrase “confirmed in writing” as referring to the moment when
the direction is confirmed and received leads to an interpretation that the
statute cannot reasonably bear. However, to arrive at that conclusion, the
judge had to resort to his "correct" interpretation.
[22] The union
maintained that the appeals officer provided clear and principled justification
for his decision, supported by principles of statutory interpretation, and
consistent with prior jurisprudence interpreting similar statutory provisions. Canada
Post, in my view appropriately, does not challenge the intelligibility or level
of justification contained in the appeals officer’s reasons. It contends that
the appeals officer’s interpretation was both incorrect and unreasonable. Since
I have concluded that the correctness standard does not apply, the sole
remaining issue is whether the decision falls within an acceptable range of
outcomes which are defensible in respect of the facts and the law: Dunsmuir
at para. 47.
[23] In Celgene
Corp. v. Canada (A.G.), 2011 SCC 1, the Supreme Court reaffirmed the
principle that statutory interpretation involves a consideration of the
ordinary meaning of the words used and the statutory context in which
they are found. “The words, if clear, will dominate; if not, they yield to an
interpretation that best meets the overriding purpose of the statute” (para.
21).
[24] The phrase
“confirmed in writing” may lend itself to different interpretations. It may
mean “reduced to writing”, “typed on a computer”, “printed”, “mailed”, or any
number of other things, including “received.” Therefore, the phrase, on its
own, is not clear. In my view, the underlying purpose of the confirmation is to
inform the person or entity for whose benefit the confirmation occurs. The
appeals officer relied on such reasoning to arrive at his conclusion. Although
the judge saw “no indication whatsoever that the confirmation has to do with
the reception of communication of the direction to the concerned parties,”
subsections 145(1), 145(1.1), 145(5) and 145(6) of the Code, read together,
demonstrate that the confirmation is, among other things, for the benefit of an
aggrieved party.
[25] In Toney
v. Annapolis Valley First Nations Band, 2004 FC 1728, 267 F.T.R. 186, the
Federal Court addressed subsection 240(2) of the Code. That provision requires
unjust dismissal complaints to be made “within ninety days from the date on
which the person making the complaint was dismissed.” Kelen J. held that an
interpretation whereby the limitation period began to run when the complainant
received constructive notice that he had been dismissed was reasonable.
[26] The judge
believed the appeals officer’s interpretation rendered the discretion in
paragraph 146.2(f) (power to extend the time limit) redundant. I agree with the
union that the 146.2(f) discretion remains relevant. On the appeals officer’s
interpretation, the discretion simply applies where appeals are initiated
beyond thirty days from the date of receipt of the document. The judge was also
concerned about potential appellants evading delivery. Again, I agree with the
union that the normal fact-finding function of the appeals officer is available
to ascertain when receipt occurred.
[27] As stated
previously, in conducting a review for reasonableness the court asks whether
there exists sufficient justification, transparency and intelligibility in a
tribunal’s decision-making process. There is no suggestion from either party,
or in the judge’s reasons, that the appeals officer is to be faulted in this respect.
[28] The court
also asks whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law. Judicial review on a
standard of reasonableness endorses the notion that no single interpretation of
a provision will necessarily result: Dunsmuir at para. 47; Khosa
at para. 25. Moreover, 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”:
Dunsmuir at para. 49; Khosa at para. 25 citing David J. Mullan,
“Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17
C.J.A.L.P. 59
at 93.
[29] On a standard
of review of reasonableness, I am unable to conclude that the appeals officer’s
decision was outside the range of possible, acceptable outcomes. It was not
inconsistent with the object and purpose of the statutory scheme. Rather, it furthered
them. Since the appeals officer’s interpretation of the time limitation was one
that was reasonably open to him, the judge erred in concluding otherwise.
[30] I would allow
the appeal, set aside the judge’s order and restore the appeals officer’s
determination. I would award the union its costs of the appeal.
“Carolyn Layden-Stevenson”
“I
agree
K.
Sharlow J.A.”
“I
agree
Eleanor
R. Dawson J.A.”
SCHEDULE “A”
TO THE REASONS:
Canadian Union of Postal Workers and Canada
Post Corporation
A-101-10
Dated January 25, 2011
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Canada Labour Code
(R.S.C. 1985, c. L-2)
145 (1.1) A health
and safety officer who has issued a direction orally shall provide a written
version of it
(a) before the officer leaves
the work place, if the officer was in the work place when the direction was
issued; or
(b) as soon as possible by mail,
or by facsimile or other electronic means, in any other case.
…
145
(6) If a health and
safety officer issues a direction under subsection (1), (2) or (2.1) or makes
a report referred to in subsection (5) in respect of an investigation made by
the officer pursuant to a complaint, the officer shall immediately give a
copy of the direction or report to each person, if any, whose complaint led
to the investigation.
…
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.
…
146.2 For the purposes of a
proceeding under subsection 146.1(1), an appeals officer may
(f)
abridge or extend the time for instituting the proceeding or for doing any
act, filing any document or presenting any evidence;
…
146.3 An appeals
officer’s decision is final and shall not be questioned or reviewed in any
court.
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.
Interpretation Act
(R.S.C. 1985, c. I-21)
12. Every enactment is deemed remedial, and shall
be given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects.
|
Code canadien du travail
(L.R.C. 1985, c. L-2)
145 (1.1) Il confirme par écrit toute
instruction verbale :
a) avant de
quitter le lieu de travail si l’instruction y a été donnée;
b) dans les
meilleurs délais par courrier ou par fac-similé ou autre mode de communication
électronique dans tout autre cas.
…
145
(6)
Aussitôt après avoir donné les instructions visées aux paragraphes (1), (2)
ou (2.1), ou avoir rédigé le rapport visé au paragraphe (5) en ce qui
concerne une enquête qu’il a menée à la suite d’une plainte, l’agent en
transmet copie aux personnes dont la plainte est à l’origine de l’enquête.
…
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.
…
146.2 Dans le cadre de la procédure
prévue au paragraphe 146.1(1), l’agent d’appel peut :
f) abréger ou proroger les délais
applicables à l’introduction de la procédure, à l’accomplissement d’un acte,
au dépôt d’un document ou à la présentation d’éléments de preuve;
…
146.3 Les décisions de l’agent d’appel sont
définitives et non susceptibles de recours judiciaires.
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.
Loi d’interprétation
(L.R.C. 1985, c. I-21)
12. Tout texte est
censé apporter une solution de droit et s’interprète de la manière la plus
équitable et la plus large qui soit compatible avec la réalisation de son
objet.
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