Date: 20060822
Docket: T-1428-06
Citation: 2006
FC 1011
Edmonton, Alberta, August 22, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CANADA POST CORPORATION
Applicant
and
ATTORNEY GENERAL
OF CANADA and
CAROLYN POLLARD
Respondents
REASONS FOR ORDER AND ORDER
THE MOTION
[1]
This is a
motion brought by Canada Post Corporation (Canada Post or the Applicant) for an
interim order staying the decision and direction of the Canada Appeals Office
on Occupational Health and Safety dated July 14, 2006 (Decision) pending the
determination of an application for judicial review of the Decision.
[2]
The
Decision allowed the Respondents’ (Ms.Pollard) appeal of a decision of the
Health and Safety Office regarding Ms. Pollard’s refusal to work made under the
Occupational Health and Safety provisions of Part II of the Canada Labour
Code (Code).
BACKGROUND
[3]
The Applicant
is an agent of Her Majesty in right of Canada, pursuant to section 23 of the Canadian
Post Corporation Act, R.S. 1985, c. C-10. Canada Post has exclusive
jurisdiction for the establishment and operation of postal services in Canada.
[4]
Ms.Pollard
was initially hired as an independent contractor to perform rural mail
delivery, and performed such functions in that capacity from September 1998 to
December 2003.
[5]
On
December 3, 2003, Ms.Pollard was offered and accepted a position (effective
January 1st, 2004) as an employee of Canada Post (referred to us a
“rural and suburban mail carrier” (RSMC)), and she became subject to the
provisions of Part II of the Code dealing with occupational health and
safety.
[6]
It had
become an unauthorized practice for some RSMCs to deliver mail to rural boxes
by delivering out of the drivers’ side window whilst traveling on the wrong
side of the road. In June 2004, Canada Post wrote to Ms.Pollard (and all other
RSMCs) and advised that she was no longer permitted to drive on the left
shoulder of roadways to deliver the mail to rural mailboxes, given that it was
a violation of the highway traffic laws.
[7]
Ms.Pollard
raised her concerns with Canada Post with respect to the delivery of the mail
through the passenger side of her car. After a re-inspection of her route that
concluded that Ms.Pollard could safely deliver through the passenger side
window, Canada Post advised her that she was required to do so.
[8]
On
November 24th, 2004 Canada Post advised Ms.Pollard that her route
had been restructured to ensure that she was no longer required to deliver the
mail on the left-hand shoulder of the roadway. Canada Post instructed Ms.Pollard
to deliver through the passenger side window.
[9]
Without
attempting to perform her deliveries, Ms.Pollard refused to continue to work.
She claimed that the required bending, stretching and twisting to deliver the
mail to rural mailboxes through the passenger side window of her car
constituted a danger within the meaning of Part II of the Code.
[10]
In
addition to Ms.Pollard’s refusal, there have been a number of safety complaints
and work refusals by RSMCs across Canada
relating to traffic safety issues and, specifically, to safe delivery to rural
mailboxes. As a result of these complaints and refusals, Canada Post
commissioned a study by the National Research Council of Canada (NRC) on the
development of safe delivery criteria for rural mailboxes.
Decision of the Health and Safety Officer
[11]
Health and
Safety Officer (HSO) Manella was contacted and investigated Ms.Pollard’s
refusal to work on November 25th, 2004. On December 14th,
2004, HSO Manella issued his Investigation Report and Decision, and determined
that a danger did not exist for Ms.Pollard. However, HSO Manella did issue a direction
to Canada Post to institute a safe work procedure and conduct a job hazard
analysis.
[12]
On
December 22nd, 2004, Ms.Pollard appealed HSO Manella’s decision
pursuant to subsection 129(7) of the Code.
[13]
On April
10, 2006, Mr.Christopher Eady, Officer, Safety and Ergonomics for Canada Post
conducted an ergonomic review of RSMC rural mail box delivery which Canada Post
relied upon at the hearing of Ms.Pollard’s appeal before the Canada Appeals
Office on Occupational Health and Safety (CAOOHS).
Decision of the CAOOHS
[14]
On July 14th,
2006 the CAOOHS rendered its decision and direction (Decision) and allowed Ms.Pollard’s
appeal and rescinded HSO Manella’s decision.
[15]
Canada
Post alleges that CAOOHS made the following findings:
(a)
HSO
Manella erred in his decision because he looked too narrowly at the issues
related to Ms.Pollard’s refusal to work and did not consider the circumstances
in existence at the time of Ms.Pollard’s refusal to work;
(b)
A “danger”
within the meaning of Part II of the Code existed for Ms.Pollard in
respect of the potential traffic and ergonomic hazards related to her work;
(c)
A “danger”
within the meaning of Part II of the Code could be made in circumstances where
the environment and type of ergonomic movement performed was solely within the
discretion of the worker;
(d)
Canada
Post had a duty under Part II of the Code to inform its employees of the
options to perform the work in question and to provide them with the necessary
training;
(e)
There was
inherent risk of injury for delivery frequencies in excess of 40 rural
mailboxes per hour which constituted a “danger” within the meaning of the Code;
(f)
The
medical condition specific to Ms.Pollard, namely arthritis in her back, that
rendered her unable to complete the duties of her position constituted a
“danger” within the meaning of the Code;
(g)
All
employees may possibly suffer from physical or mental frailty that would
prevent them from safely performing the required work;
(h)
Ms.Pollard
could refuse to perform work on the basis of ergonomic safety without
specifying which movement or motion constituted a “danger” within the meaning
of the Code to her health and safety;
(i)
The
ergonomic movements in question did not constitute “normal conditions of
employment,” and were thus not exempt from the provisions related to dangerous
work, pursuant to subsection 128(2)(b) of the Code;
(j)
A
grievance settlement release signed by Ms.Pollard, in which she withdrew her
appeal, did not bar adjudication of the appeal; and
(k)
Canada
Post breached its obligations under the Code to provide training to RSMCs in
respect of delivery of rural mailboxes through the passenger side window of
their vehicles.
Canada Post’s Application for
Judicial Review
[16]
On August
8, 2006, Canada Post commenced an application for judicial review for an order
in the nature of certiorari, quashing and setting aside the Decision of
CAOOHS on the basis of the following reviewable errors:
(a)
By finding
that it had jurisdiction to assess and make a finding of “danger” under the Code
in respect of traffic safety related matters, notwithstanding that they were
not the subject of the HSO’s Manella’s review, direction nor raised in the
appeal;
(b)
By determining
that finding of “danger” under the Code could be made:
(i)
in
circumstances where the work environment, body positioning, and type of
ergonomic movement performed was solely within the discretion of the worker;
(ii)
on the
basis that Canada Post had the duty under Part II of the Code to inform its
employees of the options to perform the work in question and to provide them
with the necessary training in respect of the body positioning, and the type of
ergonomic movement performed in effecting delivery to rural mail boxes;
(c)
By making
a finding that there was an inherent risk of injury for delivery frequencies in
excess of 40 rural mail boxes per hour, to the point that it constituted a
“danger” under the Code under any and all potential circumstances;
(d)
By making
a determination that a medical condition specific to Ms. Pollard that rendered
her unable to complete the duties of her position constituted a “danger” under
the Code that would permit other employees, not similarly afflicted, with the
right to also refuse to perform such work;
(e)
By making
a determination that all employees may possibly suffer from a physical or
mental frailty which would prevent them from safely performing the required
work, in the absence of any evidence to support this conclusion;
(f)
By making
a determination that Ms. Pollard could refuse to perform work on the basis or
ergonomic safety without specifying which movement or motion constituted a
“danger” under the Code to her health and safety, and accordingly de
facto determining that no ergonomic motion would constitute a danger;
(g)
By making
a determination that the ergonomic movements in question did not constitute
“normal conditions of employment,” and were thus exempt from the provisions
related to dangerous work, pursuant to subsection 128(2)(b) of the Code;
(h)
By making
a determination that a grievance settlement release signed by Ms.Pollard, in
which she withdrew her appeal, did not bar adjudication of the appeal;
(i)
By
breaching the natural justice rights of Canada Post by failing to provide to
Canada Post an opportunity to make submissions and provide additional evidence
in respect of the Coors’s enquiry on traffic safety issues, after specifically
advising counsel for Canada Post (after an objection was made during the course
of the hearing) that such an opportunity would be afforded; and,
(j)
By breaching
the natural justice rights of Canada Post by failing to provide to Canada Post
an opportunity to make submissions and provide evidence in respect of the Coors’s
reliance upon the provisions of the Material Handling Regulations of the Canada
Occupational Health and Safety Regulations SOR/86-304, which was not argued by
the parties nor drawn to their attention by the Appeals Officer, and an
opportunity to respond to its applicability was not afforded to the parties.
Compliance with
the Decision
[17] In the few weeks following the receipt of the
CAOOHS’ Decision, Canada Post took steps to ensure the safety of RSMCs. In
this regard, Canada Post has taken the following measures:
a) Ms.Pollard has been given a
helper who delivers the mail through the passenger side window;
b) Safe work procedures on
delivery to rural mailboxes have been re-issued;
c) Ms.Pollard has been given a
flashing light and a sign for her vehicle to increase its road-side visibility;
d) Ms.Pollard’s route has been
reviewed using the NRC criteria and corrections have been initiated;
e) Delivery problem reports have
been sent to rural mail recipients with respect to rural mailboxes which need to
be modified in order to ensure the safe delivery of the mail.
[18] Canada Post has also taken steps with respect to
the safety of other RSMCs. Helpers have been provided where there have been
complaints related to ergonomic considerations. In respect of traffic safety
concerns, Canada Post has reviewed the concerns against the NRC criteria, and
where appropriate, has implemented one of several amelioration procedures, such
as:
a) Requiring that the rural mail
box be moved to a safe location;
b) Requiring rural mail
recipients to pick up mail at centralized locations; or,
c) Changing the delivery from
individual rural mail boxes to centralized group delivery at a Community Mail
Box.
[19] Canada Post has also established an independent “Panel
of Experts” with traffic, ergonomic and legal expertise in health and safety,
whose mandate is to provide expert advice and research on matters related to
the health and safety of rural mail delivery.
Enforcement of Decision by
Human Resources Skills Development Canada
[20] On August 1st, 2006, an HSO for Human
Resources and Skills Development Canada (HRSDC), Mr.Ken Manella, called Canada
Post to advise that he had been tasked by HRSDC to set up a fact finding
meeting with Canada Post’s representatives, together with Ms.Pollard and her
representatives, in order to determine what steps had been taken by Canada Post
since the release of the Decision.
[21] HSO Manella advised Canada Post that it was
HRSDC’S interpretation of the Decision that it prohibited delivery to rural
mailboxes if the vehicle used was not completely off the roadway.
[22] HSO Manella requested that Canada Post provide to
him the number of RSMC’s working out of the facility and the number of points
of call where an RSMC vehicle could not effect mail delivery in a manner which
would permit the vehicle to be completely off the roadway.
[23] HSO Manella advised Canada Post that the fact
finding meeting could result in HRSDC deciding and directing that RSMCs were
not to deliver the mail to rural mailboxes if they were not completely off the
roadway while effecting delivery to rural mailboxes, as such an activity would
be considered unsafe by HRSDC.
Operational Impact of Decision
(Ergonomic Issue)
[24] There are approximately fifty-eight (58) RSMCs who
work out of Canada Post’s mail processing facility for Brampton North. There
are approximately forty (40) RSMC routes delivering to rural mailboxes.
[25] RSMCs are permitted to determine the type of
vehicle they use in effecting delivery and pick up of mail, save and except
that certain capacity requirements are mandated. Nationally, RSMCs utilize all
manner of vehicles, from passenger cars, to mini-vans to pick-up trucks of various
makes, models and sizes.
[26] All RSMCs are required to effect delivery to pick
up from rural mail boxes through the passenger side window of their vehicle.
Except when effecting delivery to community mail boxes (a multiple grouping of
boxes within a single mail box structure), to other centralized points, or to
the door, RSMCs, for reasons of safety, are not permitted to exit their
vehicles whilst making deliveries.
[27] There are approximately 840,000 rural mailboxes in
Canada servicing approximately
1,760,000 Canadians.
[28] Canada Post alleges that the Decision does not
relate to any particular ergonomic movement complained of in respect of the
work refusal. Accordingly, the Decision could be extended to every movement by
every RSMC across Canada, and could effectively
prevent Canada Post from delivering mail to 840,000 rural mailboxes.
[29] Canada Post alleges that a potential long-term
solution to the delivery and pick up through the passenger side window is to
purchase right-hand drive vehicles. However, sufficient numbers of these types
of vehicles are not currently available in Canada to be used by all RSMCs, and, as a
result, it would take an inordinate period of time to obtain these vehicles and
the cost would be prohibitive. Although European models are available in the
right-hand drive configuration, these vehicles do not meet North American
standards.
[30] Canada Post is concerned that the Decision could
be used as a precedent that would not only impact all the other RSMCs in
Brampton, ON, but also all the other RSMCs currently delivering and picking up
mail through the passenger side window of their vehicles across Canada. Canada
Post says this type of direction would be completely unmanageable if it
extended to the office or national level due to the lack of time and
flexibility regarding alternate solutions.
Operational Impact of Decision
(Traffic Safety Issue)
[31] Canada Post’s position is that many of the points
of call on rural mail routes serviced by Brampton and Greater Toronto post
offices would not permit a vehicle to be completely off the roadway, yet would
be in conformity with the NRC safe delivery criteria.
[32] It is unknown how many rural mailboxes would be
affected by the traffic safety
interpretation being advanced by HRSDC. The location of the
box and the dimensions of the particular RSMC’s vehicle will impact upon the
ability to deliver without being on the traveled portion of the roadway. A
change in the type of vehicle could lead to a change in the “safeness” of the
delivery. Canada Post says there are potentially hundreds of thousand of points
of call to which Canada Post may no longer be able to effect delivery under HRSDC’s
interpretation.
[33] Canada Post feels that a potential solution to the
traffic safety concerns is to have rural mail clients pick up and drop off
their mail at centralized Post Offices. In addition to the inconvenience to the
customers, however, Canada Post’s facilities would not have the capacity to
handle large volumes of mail for customer pick up for an extended period of
time. Canada Post says it would be put to exceptional expense in respect of
handling, distributing and storing mail in its facilities, which could not be
recovered in damages.
[34] Canada Post was forced to use this option in
Newmarket, ON, Fredericton, NB, Dauphin,
MB and Truro, NS. There was an immediate negative
reaction from customers who contacted local and national politicians and media
to contest this change to the delivery of their mail. As a result, Canada
Post’s reputation as a quality service provider was irreparably damaged by this
quick fix solution.
[35] Canada Post alleges that another potential
solution is to discontinue delivery and pick up and relocate the point of
delivery to a centralized community mail box. However, there are not enough of
such boxes in Canada Post’s inventory, or available commercially, to
accommodate the need should delivery be required to be discontinued to all potentially
“unsafe” points of call nationally. In addition, authorization for sites for
such boxes must be obtained from municipalities and, after approval, the sites
must be prepared to receive the boxes. In addition to the inconvenience to its
customers, Canada Post says it would be put to exceptional expense in respect
of the location determination and approvals, box purchase and preparation and
site preparation/installation, which could not be recovered in damages.
[36] In the few weeks since the communication of the Decision
and over the last several months of investigation, Canada Post has been unable
to identify other satisfactory solutions to the narrow roadway shoulder issue
short of convincing the municipal/provincial authority to modify the roadway.
Irreparable Harm
[37] Canada Post says it has already suffered
irreparable harm to its reputation as a quality service provider due to changes
that it has had to make in order to comply with the Decision, which cannot be
compensated by damages.
[38] In respect of accommodating the ergonomic issue,
Canada Post has provided paid assistants
to those RSMCs who have complained or refused to work.
Canada Post is currently expending approximately $200,000 per month in this
regard. In the event that the Decision is given broader application by HRSDC,
the costs to Canada Post will increase exponentially, and are not capable of
recovery in damages.
Undertakings
[39] Canada Post has provided the following
undertakings with respect to this motion for a stay:
a) Canada Post shall pay any
damages as determined by the Court arising out of the granting of this stay;
b) Canada Post has commissioned
an ergonomic study through Human North Research, and, upon completion of this
study, will assess ergonomic complaints or work refusals in accordance with the
guidelines established in this study and will make decisions regarding the mode
of continued delivery based upon these criteria and in compliance with the
provisions of the Code;
c) Canada Post
will assess complaints or work refusals relating to delivery or traffic safety
matters in accordance with the Panel of Experts’ recommendations on safe
delivery criteria, and will make decisions regarding continued delivery based
upon these criteria and its obligations pursuant to the provisions of the Code;
and,
d) Canada Post
will maintain all remedial actions which it has instituted in respect of Ms.
Pollard’s route pending final determination of this judicial review
application.
ISSUES
[40] The issue raised in this motion is whether Canada
Post has made out the substantive grounds necessary for the Court to order the
extraordinary remedy of a stay.
[41] Canada Post must satisfy the usual three part test
for a stay of the Decision at issue in this case:
b.
prima
facie case;
c.
irreparable
harm;
d.
balance of
convenience.
[42] Canada Post bears the onus of proving each element
of this three-stage test. Canada Post must prove each element on a balance of
probabilities. If Canada Post fails to prove any one of these elements, the
stay motion must be denied.
ANALYSIS
[43] The Supreme Court of Canada set out the test for
the granting of a stay in RJR-Macdonald
Inc. v. Canada (Attorney-General) where it adopted the
three-part test adopted in Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd.
to determine if a stay should be ordered. The test can be summarized as
follows:
· First, the court
must determine whether there is a serious issue to be tried.
· Second, it must
consider whether the applicant will suffer irreparable harm if the application
is refused.
· Third, and
finally, it must assess which of the parties will suffer greater harm from the
granting or refusal to grant the interlocutory remedy pending a decision on the
merits.
RJR-Macdonald Inc. v. Canada (Attorney-General), (1994), 111 D.L.R. (4th)
385 at p. 400 (S.C.C.)
[44] It is clear from the materials filed and the
arguments adduced by Counsel for Canada Post
that what Canada Post fears is a direction by HRSDC that the
Decision will apply generally, so that HRSDC might decide and direct that RSMCS
are not to deliver mail to rural mailboxes unless their vehicle are completely
off the roadway.
[45] The Decision itself only relates to Ms. Pollard
and Canada Post has had no problem in
implementing interim remedial measures to alleviate
Ms.Pollard’s difficulties. Ms.Pollard, in fact, is delivering mail on her
route.
[46] It is clear to me that the Court cannot grant an
interim stay to prevent HRSDC from making
a future decision based upon a general direction. The Court
has no jurisdiction to do so because there is no underlying judicial review
application for such a decision and, because no such decision has yet been
made, and may never be made, and if it is made there is no way at this time to
ascertain it’s scope, any damages that the Applicant might suffer are, at this
point, entirely speculative so that the second branch of the RJR-Macdonald
test cannot be satisfied. The fact that HRSDC may have adopted a particular
“interpretation” of the Decision is not the issue. HRSDC has yet to decide
whether that interpretation requires a general direction,
and it may (following the fact-finding exercise that is presently underway)
decide otherwise. So there is no telling what might happen at this juncture and
the present motion is premature in so far as it seeks a stay of what HRSDC
might or might not do as a consequence of its “interpretation” of the Decision.
[47] Insofar as the Decision relates to Ms.Pollard (and
the Respondent agrees this is its entire scope) then the R.J.R.-Macdonald
test cannot be satisfied because the Applicant has already acted to put in
place interim remedial measures that will remain in place until the judicial
review application is heard.
[48] As a consequence, this motion, in my view, is
entirely premature.
[49] In addition, the fact that it is a pre-emptive
attempt to forestall damage that may never occur,
because HRSDC may not make the kind of decision Canada Post
fears, means that irreparable harm cannot be proved and remains entirely
speculative.
[50] The second part of the RJR-MacDonald test
requires that Canada Post establish that it will suffer irreparable harm if the
stay is not granted. Irreparable harm involves substantial harm that in the
normal course cannot be cured by damages. In RJR-MacDonald, Sopinka and
Cory JJ. defined “irreparable harm” as follows:
At this stage the only issue to be
decided is whether a refusal to grant relief could so adversely affect the
applicant’s own interests that the harm could not be remedied if the eventual
decision on the merits does not accord with the results of the interlocutory
application.
“Irreparable” refers to the nature of the
harm suffered rather than its magnitude. It is harm which either cannot be
quantified in monetary terms or which cannot be cured, usually because one
party cannot collect damages from the other. Examples of the former include
instances where one party will be put out of business by the court’s decision
(R.L. Crain Inc v. Hendry (1988), 48 D.L.R. (4th ) 228
(Sask. Q.B.)); where only one party will suffer permanent market loss or
irrevocable damage to its business reputation (American Cyanamid, supra); or
where a permanent loss of natural resources will be the result when a
challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, [1985] 3
W.W.R. 577 (B.C.C.A.)). The fact that one party may be impecunious does not automatically
determine the application in favour of the other party who will not ultimately
be able to collect damages, although it may be a relevant consideration
(Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).
RJR-MacDonald, supra at pp. 405-406
[51] In my view, Canada Post has not presented evidence
of irreparable harm of the kind required by the jurisprudence. Instead, it
relies on bald assertions regarding potential harm that is entirely
speculative. In addition, Canada Post seeks to rely on purported harm arising
from decisions rendered in other health and safety proceedings that are not the
subject of the present judicial review application and that are not the subject
of this motion for a stay.
[52] The Federal Court of Appeal has held that applicants
for a stay must present clear and
cogent evidence of irreparable harm. Courts have
consistently held that evidence of harm that is merely speculative, or is
indirect evidence of harm, is insufficient.
Syntex
Inc. v. Apotex Inc.,
[1991] F.C.J. NO. 423 (C.A.)
Centre
Ice Ltd. v. National
Hockey League, [1994] F.C.J. No. 68 at para. 7 (C.A.)
Boston Pizza International v. Boston Market
Corp., [2003] F.C.J. No.
531 at 28, 35 (T.D.)
[53] I
agree with the Respondents that it is clear from paragraphs 57-60 of Canada
Post’s factum that the primary form or irreparable harm alleged is the harm
that “could result” (para. 58) “in the event that this [the Pollard]
Decision and Direction is given broader application by HRSDC”
(para.60).
[54] The
speculative nature of the harm is clear from these paragraphs as well as from Canada
Post’s assertion at paragraph 57 of its factum that “HRSDC’s interpretation of
the Decision and Direction could be applied nationally and affect all
rural areas in Canada.” [emphasis added]
[55] The
speculative nature of the harm is also clear from the fact that HRSDC has not
formulated an official position on the proper interpretation of the Decision.
It has also not enforced any particular interpretation of the Decision or
issued any directions to the parties purporting to enlarge the scope of the
Decision.
[56] I also agree with the Respondents that it is also
clear from paragraph 7 of Mr.Paliwal’s affidavit filed in support of Canada
Post’s motion that the harm alleged is speculative, as he refers to harm that
might occur “if HRSDC’S interpretation of the CAOOHS’s decision and
direction is enforced,” or “if it extended to the office or national
level” and harm that might arise because the decision “could be used as
a precedent.” [emphasis added]
[57] The speculative nature of the harm is also clear
from paragraph 9 of Mr.St.-Germaine’s
affidavit where he states that the harm alleged is that
which might flow from a yet to be scheduled potential future fact-finding
meeting between HRSDC and the parties in this matter. As stated at paragraph 9
of his affidavit, Mr.St.-Germaine is concerned that such a meeting “could
result” in HRSDC deciding and directing that RSMCs are not to deliver mail
to rural mailboxes unless their vehicle is completely off the roadway.
[58] Hence, I have to agree with the Respondent that, from
the above-noted paragraphs of Canada Post’s motion, it is clear that the harm
alleged in this matter is speculative at best. It is harm that might result if
future eventualities occur. It would only result if HRSDC decided to officially
adopt an interpretation that would broaden the scope of the Decision. However,
since such a decision on the part of HRSDC has not been taken at this time, any
harm that could potentially flow from it is entirely speculative.
[59] If such an official interpretation is formulated
and HRSDC issues directions to the parties
based on this interpretation, it would be open to Canada
Post to challenge the interpretation and directions through the appropriate
channels. However, as the Respondent says, any challenge to a decision that has
yet to be taken is premature and any harm that might possibly flow from such a
decision is merely speculative at this time.
Decisions in Other Proceedings
[60] A portion of the harm claimed by Canada Post is
harm that is alleged to flow from
decisions rendered in other health and safety proceedings
that are not the subject of the present judicial review application nor the
present motion for a stay.
[61] For example, at paragraph 17 of his affidavit, Mr.Sanjay
Paliwal states that “Canada Post was forced to use this option [use of
centralized post offices] in Newmarket, ON, Fredericton, NB,
Dauphin
MB, and Truro, NS”, that there was a negative reaction
from customers, and that “[a]s a
result, Canada Post’s reputation as a quality service provider
was irreparably damaged….”.
[62] Canada Post similarly asserts, at paragraph 59 of
its factum, that “Canada Post has
already suffered irrevocable damage to its business
reputation as a quality service provider due to changes it has had to make in
order to comply with the Decision and Direction.”
[63] Once again, I must agree with the Respondents that
any harm associated with changes that Canada Post has made, or has been
required to make, in other locations due to decisions rendered in health and
safety proceedings, is not harm flowing from the Decision in this matter. It is
the Decision regarding danger to Ms.Pollard that is sought to be stayed in these
proceedings. Any stay imposed by this Court in this matter would not affect decisions
in other locations, and therefore, any harm flowing from changes made in
response to those decisions cannot constitute irreparable harm that might flow
from a decision not to grant a stay in the present matter.
[64] I concur with the Respondents that, in regards to
its claim of irreparable harm arising from damages to its business reputation, Canada
Post has failed to present any evidence, direct or otherwise, of this
“irrevocable damage to its business reputation as a quality service provider”
(paragraph 59 of factum) and certainly no evidence that would result from the
Decision. This damage cannot be assumed. Canada Post bears the onus of proving
this harm and it has failed to do so.
CONCLUSIONS
[65] Because the RJR-Macdonald test is
conjunctive and all those elements must be proved, there
is little point in continuing further to consider serious issue
or balance of convenience. Even if the Court had the jurisdiction to consider
this motion (and in so far as it relates to a possible future decision by
HRSDC, I conclude there is no jurisdiction), Canada Post has not demonstrated
irreparable harm in accordance with the governing jurisprudence.
ORDER
THIS COURT ORDERS that
1. The motion for a stay is dismissed.
2.
The parties
may address the Court on the issue of costs.
“James Russell”
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