Date: 20060601
Docket: T-776-02
Citation: 2006
FC 673
BETWEEN:
PAMELA SACHS, CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE
DIVISION, AIR CANADA COMPONENT, OCCUPATIONAL HEALTH AND SAFETY COMMITTEE of
LOCAL 4004 (TORONTO)
Applicants
and
AIR CANADA, DOUGLAS MALANKA, JACQUES SERVANT
Respondents
REASONS FOR ORDER
HUGHES J.
[1]
This is an
application made by the union representing airline employees of Air Canada for judicial review in
respect of a decision of an Appeals Officer under the Canada Labour Code
dated April 18, 2002 (Decision number 02-004). It was held that the Officer did
not have jurisdiction to hear an appeal of a determination of a Health and
Safety Officer that a danger did not exist in the workplace. In the
alternative, an extension of time for instituting proceedings for judicial
review of the decision of the Health and Safety Officer, is sought.
[2]
In the
year 2000 Canada’s two major airlines were
merged, Canadian International Airlines was merged into Air Canada. As part of that merger the surviving
entity, Air Canada, was required to obtain a
single Air Operator Certificate before intermingling of flight crews was to be
permitted. Part of that operation required that a single Manual to be used by
flight crews dealing with matters including health and safety issues was to be
created. In addition to the production of a new Manual, cabin personnel from
both airlines were to be trained in the procedures set out in that Manual.
[3]
Late in
2000 a Manual was prepared said to incorporate the best of procedures from both
airlines. The union representing cabin personnel obtained a copy of the Manual
on November 10, 2000. On December 7, 2000 the union was advised that Air Canada
intended that the new Manual be effective as of January 3, 2001. The union had
a number of concerns relating to the health and safety aspects of the new
Manual and whether sufficient personnel could be adequately trained by January
3, 2001. A meeting was held between representatives of Air Canada and the union following
which, on December 22, 2000 the union submitted a letter with a substantial appendix
outlining in detail its concerns.
[4]
Air Canada, in letters of December 29,
2000 and January 3, 2001, expressed a willingness to continue a dialogue with
the union and working with them.
[5]
On January
2, 2001 the union filed a complaint with Transport Canada requesting that implementation of the
Manual be delayed and directions be given to halt what the union perceived as
contraventions of the Canada Labour Code. That same day Transport Canada responded stating,
erroneously, that certain internal resolution procedures needed to be instituted
first. Further that same day the union responded in writing pointing out the
error. Later, but still on the same day, Transport Canada responded in writing stating “we do not
believe that the dangers exists.” The next day in a telephone conversation,
Transport Canada informed the union that an
investigation was underway. This statement was subsequently confirmed by letter
from Transport Canada to the union dated January
19, 2001.
[6]
The
investigator appointed under the provisions of section 127.1(9) of Part II of
the Canada Labour Code was a person whom the union alleges was not fair,
impartial or unbiased. According to the uncontradicted evidence before this
Court, that person was heard to state that the chairperson of the union’s
health and safety branch was one of the people in the airline industry that she
hated most, and that the investigator “rolled her eyes and muttered disparaging
comments” about that chairperson during a presentation she made at another
occasion. This person, the union alleges, could not make an unbiased report.
[7]
The
investigator made investigations and produced a report under cover of a
Memorandum dated March 14, 2001. That report indicates that the investigator
spoke only to Air Canada representatives and appears
to have made no effort to speak to the union or to flight crew employees. This,
the union alleges, constitutes procedural unfairness.
[8]
The union
alleges, therefore, that the report is a nullity since, the investigator was
biased and the procedure followed was fatally flawed.
[9]
The
investigator’s report was essentially adopted by the Health and Safety Officer
of Transport Canada. In two instances where it
was found in the report that concerns may exist, Air Canada provided an assurance of voluntary
compliance (AVC). In a letter to the union dated May 7, 2001 that Officer
concluded:
To ensure that occupational health and
safety becomes part of the overall corporate decision making process, Managers
in each department of the company must be aware that decisions regarding
changes on-board aircraft may affect the aircrew’s work and create hazards in
their workplace. Decisions and initiatives shall be discussed with the policy
committee. These concerns were conveyed to Air Canada by requesting assurances of voluntary
compliance.
We could not find any evidence that Air Canada has contravened the
employer’s general duty to ensure that the safety and health at work of every
person employed by the employer is protected. In fact, by having a required
flight attendant manual where safety and emergency procedures are set out
demonstrates that the employer assumes his responsibilities under section 124.
Our investigation reveals that the
employees’ workplace representative in Dorval received verbal complaints regarding
Transmittal # 147. These complaints should have been sent to Management. When
there are health and safety concerns raised by the employees regarding
implementation of changes in the flight attendant manual, they shall be raised
at the local health and safety committee meetings.
The ‘union committee’ submitted its
written comments to Air Canada on December 22, 2000. We
regret to inform you that, this does not constitute a recognized committee
according to the Canada Labour Code, Part II. These
comments were reviewed and did not demonstrate that danger existed with the
points mentioned in the transmittal. When employees have concerns regarding
health and safety, they shall address them through the policy or work place
committee as appropriate.
[10]
The union
filed an appeal under section 146 and 146.1 of the Canada Labour Code
from that decision. The appeal was conducted by an Appeals Officer appointed
under section 140 (1) of the Code. That Officer, in a letter dated June
7, 2001 to the union’s solicitors stated:
The Code does not authorize an appeals
officer to review an AVC (assurance of voluntary compliance) accepted by a
health and safety officer.
Therefore, this office cannot investigate
into or comment on the appropriateness of a decision by a health and safety
officer to accept an AVC instead of issuing a direction in a given situation.
[11]
That
letter amplified a decision by the Officer dated April 18, 2002. In that
decision the Appeals Officer addressed the concerns raised by the union in this
judicial review proceeding including at the following paragraphs:
While a definition in the Canada Occupational Health and
Safety Regulations is not necessarily binding in respect of terms found in the
Code, I take from subsection 140. (1) and subsection 122.1 (purpose clause of
the Code) that health and safety officers must be capable of exercising the
discretion available to them in the Code. It seems to me that if an employer or
employee feels that the investigation of a health and safety officer is biased
or fundamentally flawed, their recourse is to complain to the Department of
Human Resources Development Canada or directly to the Minister of Labour. I
expect that the employer or employee could also seek judicial review.
Paragraph 127.1 (10) (a) and subsection
145.(1) of the Code explicitly provides health and safety officers with the
discretion whether or not to issue a direction in the case of a contravention
of Part II. Section 145.(1) has existed in some form since at least 1984,
section 127.1 was added when the Code was amended in 2000. While not
definitive, it seems to me that, if the absence of appeal of a decision not to
issue a direction in respect of a contravention was proven over this time to
constitute a serious omission, Parliament had an opportunity in 2000 to revise
and include an appeal process. They did not.
In this regard, it makes some sense to me
that Parliament provided health and safety officers with discretion to issue
directions because contraventions to the Code can range from minor to serious.
In the case of less serious contraventions, the discretion provided to health
and safety officers in paragraph 127.1(10)(a) and section 145.(1)of the Code
permits officers to obtain compliance via alternative enforcement strategies,
such as accepting an AVC.
Finally, even if I were to conclude from
this that appeals officers have the implicit authority suggested by Ms. Symes,
the problem I have is that I can find no authority under the Code to remedy the
situation. Specifically, section 146.1 of the Code only authorizes an appeals
officer to issue a direction in the case of danger and does not address
contraventions. Seemingly, Parliament would have given the appeals officer
authority to issue a direction in respect of a contravention, or to return a
file to the health and safety officer, if this had been Parliament’s intent
when the Code was amended in 2000. Subsection 146.1(1) reads:
For deciding the issue, I found the
arguments on both sides to be compelling. I am sympathetic with the argument
made by Ms. Symes that the absence of a mechanism in the Code to appeal an
investigation of a health and safety officer that is biased or fundamentally
flawed is somewhat contradictory to the IRS provisions and purpose clause of
Part II. Untested evidence in the case, (reference paragraph [3]), suggests
that the health and safety officer at Transport Canada may not have investigated CUPE’s
complaint of danger in the presence of employees and employers in connection
with the officer’s finding of no-danger. If this were the case, CUPE’s
motivation to pursue this is understandable.
However, try as I might, I cannot
persuade myself that the Code implicitly authorizes an appeals officer to
review a decision by a health and safety officer not to issue a direction,
whether or not the officer’s investigation is biased or flawed. Regrettably, I
find that I do not have jurisdiction to hear the appeal and the file is now
closed.
[12]
The union
seeks judicial review of the Appeals Officer’s decision of April 18, 2002 and
raises the following issues:
1. Did the Appeals Officer err in
finding that, under the Code, he had no jurisdiction to hear the appeal?
2. If the Appeals Officer did not
err, is section 146(1) of the Code of no force and effect as a violaton
of section 7 of the Canadian Charter of Rights and Freedoms?
3. If the Officer did not err,
and section 146 (1) does not violate the Charter, should an extension of
time be granted so that the union may seek leave to apply for judicial review
in respect of the decision of May 7, 2001 of the Chief, Aviation Occupational
Health and Safety, Transport Canada.
Issues # 1 Did the Appeals Officer err in his
finding that under the Code, he had not jurisdiction to hear the appeal?
[13]
The Court
must first embark upon the task of establishing the standard of review
applicable to the decision under review. As instructed by the Supreme Court of
Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982 at paragraph 27 the Court must adopt a “pragmatic and
functional” approach in determining where in the “spectrum” the decision at
issue stands, whether towards the “more exacting end” or the “more deferential
end.” To be of assistance the Supreme Court invited inquiry in respect of four
factors (i) Privative Clauses (ii) Expertise (iii) Purpose of the Act as a
whole, and the Provision in Particular (iv) Nature of the Problem.
[14]
Here as to
(i) Privative Clauses, there is a strong privative clause set out in section
146.4 of the Code.
146.4 No review by certiorari, etc. – 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.
[15]
This is a
strong clause indicating that a high degree of defence is warranted (see eg. Canadian
Freightways Ltd. v. Canada (Attorney General) [2003] F.C.J. No 552, 2003
FCT 391 at para 18)
(ii) Expertise
[16]
The
Officer is a person designated under the provisions of section 145.1(1) of the Code
and is given a broad range of powers, duties and immunity under subsection (2):
145.1 (1) Appointment – The
Minister may designate as an appeals officer for the purposes of this Part any
person who is qualified to perform the duties of such an officer.
(2) Status – For the purposes of
sections 146 to 146.5, an appeals officer has all of the powers, duties and
immunity of a health and safety officer.
[17]
This
provision again indicates that a high degree of deference is warranted.
(iii) Purpose of the Act as a Whole and
the Provisions in Particular
[18]
The Canadian
Labour Code, Part II clearly states its purpose in section 122.1:
122.1 Purpose of Part – The purpose of
this part is to prevent accidents and injury to health arising out of, linked
with or occurring in the course of employment to which this Part applies.
[19]
The
provisions under review deal with appeals of decisions or directions relating
dangers in the workplace. Part II, including the appeals provisions, acts as a Code
providing for the identification of perceived dangers, the mutual resolution of
such issues failing which, a health and safety officer may investigate, make
decisions and issue directions where appropriate with a mechanism for appealing
those decisions and directions. The thoroughness of the Code in this
respect indicates a high degree of deference.
(iv) The Nature of the Problems
[20]
The
problem that faced the Appeals Officer and is before the Court relates to the
jurisdiction of that Officer and, in particular, whether that Officer can
consider, on appeal, a situation where the Health and Safety Officer did not
make a decision or issue a direction but where that Officer accepted an
assurance of voluntary compliance in lieu of a decision or direction.
[21]
Jurisdictional
issues have often driven the Court to ascribe a lower degree of deference to a
decision of a tribunal. However, as expressed by the Ontario Court of Appeal
in Ontario Public Service Employees Union v. Seneca College of Applied Arts, May 4, 2006, Docket C43274
per Laskin JA for the Court at paragraphs 29 to 32:
Unfortunately, in its decision, the Divisional Court did not undertake this
pragmatic and functional analysis. Instead, it seemed to take the view that
because the question in issue was, in its opinion, a question of jurisdiction
and a question of law, the standard of review must be correctness.
That is not a sound view. Simply because
the court labels an issue “jurisdictional” does not automatically mean that the
standard of review of a tribunal’s decision on that issue is correctness. As
Evans J.A. pointed out in Via Rail Canada Inc. v. Cairns (2004), 241 D.L.R. (4th)
700 at para. 33 (F.C.A.), “Conceptual abstractions, such as ‘jurisdictional
question’, now play a much reduced role in determining the standard of review
applicable to the impugned aspect of a tribunal’s decision.”
In other words, a court’s finding that an
issue has a jurisdictional aspect does not obviate the court’s obligation to do
a pragmatic and functional analysis. See Voice Construction, supra at paras.
20-22; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 236 para. 21;
ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006]
S.C.C. 4 paras. 22-23. The “jurisdictional” nature of the issue is but a factor
in that analysis or more often, the characterization of the outcome of that
analysis. See Via Rail, supra at para. 36 and Pushpanathan, supra at para. 28.
The purpose of the pragmatic and
functional analysis – of considering the four contextual factors – is to
ascertain the legislature’s intent. See Dr. Q, supra at para 26. Did the
legislature intend that a reviewing court give deference to the Board’s
decision, and if so, what level of deference? Or, put in terms of jurisdiction,
did the legislator intend this issue to be exclusively within the Board’s
jurisdiction to resolve? See U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R.
1048 at 1089-1091.
[22]
Thus a
jurisdictional question does not always lead to a low level of deference or to the
so called “correctness” standard, although a lower to moderate level of
deference may be indicated.
A “PRAGMATIC AND FUNCTIONAL” ANALYSIS
[23]
The Court
must view the provisions of Part II of the Code as a whole, taking into
account that the issue is that of jurisdiction and, in particular, what may
constitute a “decision” or “direction” for purposes of the Appeal Officer’s jurisdiction.
Those words are to be taken in the context of Part II of the Code and
within the meaning afforded to them by those working day to day within the Code.
A pragmatic and functional analysis leads to a reasonably high level of
deference to be afforded to the decision of the Appeals Officer. While that
decision should be analysed, the Court should not, at the end of the day,
simply substitute its own analysis for that of the Officer unless there is
clear and compelling reason to do so.
[24]
A review
of the Appeals Officer’s reasons indicates that he made a thorough review of
the relevant provisions of Part II of the Code respecting appeals to an
Appeals Officer and jurisdiction in respect thereof. The Union has argued here
that two bases provide that an analysis must go further than that conducted by
the Officer. They are:
1. By implication, where there is
provision made in a statute for an appeal, those provisions are to be
interpreted in such a way so as to provide for an equal access by all
potentially affected parties to the appeal process.
2. The appeal provisions must be
interpreted in light of section 7 of the Charter such that “security of
the person” is recognized so as to give equal access to appeal to all
potentially affected parties.
Point 1
[25]
The union
argues that where an appeal provision such as the one at issue, is provided by
statute it would be a violation of the “principles of natural justice” to
interpret those provisions other than providing for equal access to all parties
potentially affected. In so doing the union relies upon a judgment of Berger JA
in Prefontaine v. Canada (Minister of National Revenue
– M.N.R)
[2001] A.J. No 1444, 2001 ABCA 288 particularly at paragraph 7 where he says “…
where the Legislature chooses to provide a mechanism for appeal, that
mechanism, in my opinion, must function in a manner that respects the
principles of natural justice.” That decision dealt with whether a Trial
Judge who had given a decision should also be the person deciding whether leave
to appeal should be granted. Berger JA held that another judge must do so.
[26]
That is
not the issue here. Here the Code provides an avenue of appeal by the
employer where the employer has been required to do something, by decision or
direction. Where no decision or direction has been made, an employee may, under
certain conditions as set out in section 128 refuse to work. Judicial review is
also available. As stated by Linden JA for the Federal Court of Appeal in Canada (Secretary of State) v.
Luitjens (1992),
142 NR 173 (leave to appeal refused [1992] SCCA No. 253) at page 176:
It is permissible for Parliament to
constitutionally deny the right to appeal. The principles of fundamental
justice do not mandate endless hearings and appeals at every stage of a
process. … In this case, Parliament undoubtedly felt that there were sufficient
other avenues of appeal and review available, and that an appeal at this
preliminary stage was unwarranted.”
[27]
In the
present case, the Code has carefully constructed certain avenues of
appeal while leaving other resources available. No implicit right to appeal can
be read in.
Point 2
[28]
The union
argues that the provision for appeal in Part II of the Code must be read
in light of section 7 of the Charter which provides for “security of the
person.” It argues that since the new Manual deals with, among other things,
health and safety issues, and Part II of the Code, section 122.1,
expressly states that its purpose is to prevent accidents and injury to health,
the appeal provisions must be given a large interpretation so as to afford
access to all potentially affected persons.
[29]
Charter principles are to be
prevalent in interpreting a statute, but only where the statute provides for
more than one interpretation. The Court cannot rewrite a statute when no
reasonable ambiguity exits. The Supreme Court of Canada has made this clear in Slaight
Communications Inc. v. Davidson, [1989], 1 S.C.R 1038 per Chief Justice
Dickson for the majority at paragraph 87:
Although this Court must not add anything
to legislation or delete anything from it in order to make it consistent with
the Charter, there is no doubt in my mind that it should also not interpret
legislation that is open to more than one interpretation so as to make it
inconsistent with the Charter and hence of no force or effect. Legislation
conferring an imprecise discretion must therefore be interpreted as not
allowing the Charter rights to be infringed.
[30]
Also in Hills
v. Canada (Attorney General) [1988] 1 S.C.R. 513, Justice L’Heureux-Dube
for the majority said at paragraph 93:
Appellant, while not relying on any
specific provision of the Charter, nevertheless urged that preference be given
to Charter values in the interpretation of a statute, namely freedom of
association. I agree that the values embodied in the Charter must be given
preference over an interpretation which would run contrary to them (RWDSU v.
Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110).
[31]
The
provisions of Part II of the Code respecting appeals are not such that
they are capable of more than one reasonable interpretation. They are clear.
The Charter does not have to be invoked in order to arrive at the proper
interpretation.
[32]
Therefore,
in answer to Issue # 1, I find that the Appeals Officer did not err in finding
that he had no jurisdiction to hear the appeal.
Issue # 2 If the Appeals Officer did not err, is
section 146 (1) of the Code of no force and effect as a violation of
section 7 of the Canadian Charter of Rights and Freedoms?
[33]
This issue
raises a constitutional question. The record shows that appropriate notices
were served on the appropriate Attornies General. None have chosen to
participate at this stage.
[34]
In arguing
this issue the union says that if the right of appeal to Appeal Officers in the
Code is available only to an employer in respect of whom a direction or
decision has been made, then it does not provide for adequate “security of the
person” in respect of employees thus, must be struck down.
[35]
I
reiterate at this point the discussion in these reasons in respect of Point 1
raised by the union as to access to a right of appeal. It is not necessary that
there be equal access to every avenue of redress provided by a statute as long
as reasonable redress is afforded. Here an employee may refuse to work in
appropriate circumstances and may seek judicial review where appropriate. The
principles of section 7 of the Charter are not violated by section 146
(1) of the Code.
Issue # 3 Should an extension of time be granted
for the union to seek judicial review of the decision of May 7, 2001?
[36]
The
underlying decision is that of May 7, 2001. The Health and Safety Officer
essentially adopted the report of the investigator, in finding that no danger
existed and that assurances of voluntary compliance should be accepted. The
union seeks to challenge this decision on the bases of bias and lack of
fundamental fairness, as previously discussed. However, no proceedings for
judicial review of that decision have yet been instituted.
[37]
The union
says that no proceedings for judicial review of the May 7, 2001 decision were
instituted since it believed that an appeal to an Appeals Officer was much more
appropriate and it believed that that Officer had jurisdiction to deal with
this matter. By Order of this Court dated September 12, 2002, the union was
permitted to argue that it should receive an extension of time to seek judicial
review of the May 7, 2001 decision, if necessary. It is now necessary.
[38]
The
criteria to be considered in granting an extension of time, or not, have been
well established in this Court (eg. Alcorn v. Commissioner of Corrections [1999],
163 FTR 1 at paras 34-43). They are:
1. Has a continuing intention to
seek judicial review been demonstrated, and has a reasonable explanation for
the delay been given?
2. Has an arguable case been
shown?
3. Is there prejudice to any
other party?
[39]
As to the
first of these criteria, the union has shown a continuing intention to
challenge the decision of May 7, 2001. It believed that an appeal was an
appropriate way to do so. By Order of this Court, above, it was given leave to
seek an extension of time for judicial review if necessary. The delays incurred
since then, including orders of the Ontario Superior Court staying proceedings
such as this, afford a reasonable explanation for any subsequent delay.
[40]
As to the
second of the criteria, the Court is not to determine the case rather, it
simply has to decide if it is arguable. The threshold is low. I find that, on
this issue, this criterion has been met.
[41]
As to the third
of these criteria, Air Canada has argued that the matter
has become moot. The Manual has been implemented and, in the ensuing years, has
been changed. The union argues that there are points of principle that arise out
of the decision sought to be challenged and that it should be allowed to argue
those points. I find that there will be no serious prejudice suffered by Air Canada should an extension of time
be granted.
[42]
Therefore,
an extension of time of thirty (30) days from the date of these reasons shall
be afforded to the Applicants, or any of them, to seek judicial review of the
decision of May 7, 2001. The provisions of paragraphs 4 and 5 of the Order of
the Court dated September 12, 2002 shall apply.
Costs
[43]
Success is
divided. Air Canada has found itself in the
position of defending a statute which it did not draft, no assistance has been
afforded by the government. It is appropriate to order that no costs shall be
awarded.
“Roger T. Hughes”
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