Martin v. Canada (Attorney general), 2003 FC 1158

Date: 20031006

Docket: T-950-02

Citation: 2003 FC 1158

Ottawa, Ontario, October 6, 2003

Present:    The Honourable Madam Justice Tremblay-Lamer                 

BETWEEN:

                          DOUGLAS MARTIN and

                   PUBLIC SERVICE ALLIANCE OF CANADA

                                                               Applicants

                                   and

                       ATTORNEY GENERAL OF CANADA

                                                               Respondent

                         REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the appeals officer, Serge Cadieux, (the "appeals officer") in which he allowed the appeal of the Parks Canada Agency ("Parks Canada") and rescinded the directions issued by Robert Grundie, a health and safety officer with Human Resources and Development Canada (the "safety officer").

FACTS

[2]                 In January 2000, the Chief Executive Officer of Parks Canada issued a direction that sidearms would not be routinely issued as standard equipment to those park wardens who perform law enforcement under the National Parks Act, S.C. 2000, c.32.

[3]                 On June 5, 2000, Mr. Douglas Martin, a park warden from Banff National Park, and one of the applicants therein, filed a complaint with the safety officer, in which he complained that he was not provided with all the necessary protective equipment to perform his law enforcement duties, namely a sidearm.

[4]                 Pursuant to Mr. Martin's complaint, the safety officer initiated a national investigation from which he concluded that any law enforcement activity performed by a park warden without the necessary protective equipment, such as a sidearm, constituted a danger.

[5]                 As a result of his conclusions, the safety officer exercised his authority under paragraphs 145(2)(a) and (b) of the Canada Labour Code, R.S. 1985, c. L-2 (the "Code") to issue two directions to Parks Canada. The directions, both dated February 1, 2001, required Parks Canada to take action to either alter the law enforcement duties of park wardens or to protect them from the danger presented by such duties. One direction was addressed to the Chief Executive Officer of Parks Canada, and applied to all park wardens conducting law enforcement activity anywhere in Canada. The other was directed to the Superintendent of Banff National Park, and applied to park wardens conducting law enforcement activity in that park.

[6]                 Parks Canada decided to appeal the safety officer's directions to the Canada Appeals Office on Occupational Health and Safety. Mr. Martin and the Public Service Alliance of Canada also decided to appeal the safety officer's directions on the basis that the directions failed to expressly order Parks Canada to issue sidearms or develop a procedure for the issuance of sidearms.

[7]                 As a result of the appeals filed by both the employer and the employee in this matter, the appeals officer presided over hearings conducted pursuant to section 146.1 of the Code.

[8]                 The appeals officer rendered his decision on May 23, 2002, in which he allowed the appeal of Parks Canada and rescinded the directions issued by the safety officer. He was of the opinion that the safety officer had confused risk with danger and that there was insufficient evidence to conclude that a situation of danger existed as defined in the Code.

[9]                 The applicants seek judicial review of this decision.

THE MANDATE OF PARK WARDENS

[10]            In order to fully understand the complaint and more particularly the sidearms issue, it is useful to have a look at the essential features of the mandate of park wardens within national parks at the time of Mr. Martin's complaint, and to chronicle the events which gave rise to the complaint.

[11]            The mandate of park wardens involves natural resource management, public safety as well as law enforcement activities.

[12]            Natural resource management activities encompass fire management, wildlife management, ecological monitoring and environmental impact assessment, research and collection activities and the natural resources management process.

[13]            Public safety activities consist of emergency response and search and rescue.

[14]            Law enforcement activities encompass compliance or enforcement. Park wardens provided law enforcement in National Parks, National Park Reserves, the Saguenay St. Laurent Marine Park (Quebec), and National Historic Sites at Louisbourg (Nova Scotia) and the Chilkoot Pass (Yukon).

[15]            In 1989, Parks Canada created a national policy for law enforcement (Management Bulletin 2.1.9: Law Enforcement in National Parks). This 1989 national policy provided for the routine issuance of baton, pepper spray and protective vest to those park wardens who were engaged in law enforcement. It also provided that firearms could be issued to park wardens in special circumstances.

[16]            In the early 1990s, shortly after the commencement of a national policy, the Quebec Region of Parks Canada commissioned a consultants' study of the safety of park wardens who perform law enforcement. The CEGEP study revealed deficiencies in training and operational practice within the warden service. The lack of compulsory training prior to employment as a park warden was specifically identified as a safety deficiency. The possible solutions advanced included training and issuance of a sidearm (CEGEP Study, Methodology).

[17]            Parks Canada took action on the recommendations respecting training and by the early 1990s provided a comprehensive law enforcement training program for park wardens. This consisted of study and operational practice at the RCMP Depot in Regina, Saskatchewan.

[18]            In July 1999, a working group was struck to finalize recommendations for an arming policy within Parks Canada. The working group met once near Victoria B.C. ("the Victoria Committee") in early September of 1999. In October 1999, the Chair of the Victoria Committee made a presentation outlining arming options to the Parks Canada Executive Board. The option preferred by the working group included a site by site review of the need for sidearms over a two year period.

[19]            In July 2000, the National Law Enforcement working group issued guidelines for risk mitigation for use pending finalization of law enforcement planning in each park.

[20]            Douglas Martin filed his complaint shortly after the Chief Executive Officer directed that sidearms would not be routinely issued to park wardens as standard equipment, and shortly before Parks Canada issued its guidelines for risk mitigation. The risk assessment referred to in the direction of the Chief Executive Officer had not been completed at this time.

ISSUES

1.        What is the appropriate standard of review of the appeals officer's decision?

2.        Did the appeals officer err in his interpretation and application of the definition of "danger" in the Code?

3.        Is this case moot?

ANALYSIS

            Standard of Review

[21]            In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, the Supreme Court of Canada confirmed that a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The pragmatic and functional approach calls upon the Court to weigh a series of factors in an effort to determine whether a particular issue before the administrative tribunal should receive exacting review by a court, undergo significant searching or testing, or be left to the near exclusive determination of the decision maker. There are four main factors that must be considered in determining the proper standard of review for a decision from an administrative tribunal: the presence or absence of a privative clause; the purpose of the statute as a whole and the provision in particular; the relative expertise of the decision maker to the court on the matter in issue; and the nature of the problem.

[22]            The first factor focuses on the presence or absence of a privative clause. Deference has often been linked to the existence of a privative clause. A "full" privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. However, it does not preclude review on the basis of an error of law if the provision in question is one that limits jurisdiction (Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890).

[23]            The presence of a "full" privative clause is compelling evidence that the Court ought to show deference to the tribunal's decision, unless other factors strongly indicate to the contrary. Conversely, a clause in an act permitting appeals is an indication that less deference should be afforded to the tribunal's decision (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).

[24]            The second factor, determining the tribunal's relative expertise, has been identified as the most important of the factors that a court must consider in settling on a standard of review (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748). If a tribunal has been granted with a particular expertise with respect to achieving the aims of the legislation, either through the specialized knowledge of its decision makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be afforded. Yet, expertise is a relative concept, not an absolute one. Making an evaluation of relative expertise between the decision maker and the Court has three dimensions: the Court must characterize the expertise of the decision maker; it must consider its own expertise relative to the decision maker; and it must identify the nature of the specific issue before the decision maker relative to this expertise (Pushpanathan, supra).

[25]            Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and law, or fact alone. The composition of an administrative body might endow it with knowledge uniquely suited to the questions before it and deference might, therefore, be called for under this factor (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557). Similarly, an administrative body might be so habitually called upon to make findings of fact in a distinctive legislative context that it can be said to have gained a measure of relative institutional expertise (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554). Simply put, an administrative body called upon to answer a question that falls within its area of relative expertise will generally be entitled to greater curial deference (Pushpanathan, supra).

[26]            The third factor is the purpose of the statute. If the question before the administrative body is one of law or engages a particular aspect of the legislation, the analysis under this factor must also consider the specific legislative purpose of the provision(s) implicated in the review (Dr. Q., supra).

[27]            A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, encourages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court (Pezim, supra). Reviewing courts should also consider the breadth, specialization, and technical or scientific nature of the issues that the legislation asks the administrative tribunal to consider. A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature intended to leave the issue to the discretion of the administrative decision-maker and, therefore, militates in favour of greater deference. Conversely, a piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference (Dr. Q., supra).

[28]            The final factor is the nature of the problem. This takes into account whether the nature of the question in dispute is one of fact or law. In general, deference will be given to questions of fact because of the advantage enjoyed by the primary finder of fact. By contrast, less deference will be afforded to questions of law, because the finder of fact may not have developed familiarity with particular questions of law. This is particularly so where the decision will be one of general importance or great precedential value (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84). However, the distinction between fact and law is not always so clear. Many determinations consist of questions that involve both fact and law (Pushpanathan, supra). With respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive (Dr. Q, supra).

[29]            Having considered each of these factors, a reviewing Court must settle upon one of the three currently recognized standards of review (Law Society of New Brunswick v. Ryan, [2002] S.C.J. No. 17). Where the balancing of the four factors suggests considerable deference, the patent unreasonableness standard will apply. Where little or no deference is called for, a correctness standard will apply. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness standard will apply.

[30]            In the case at bar, the Code contains a full privative clause with regard to decisions of appeals officers. The relevant provisions in the Code are as follows:

[31]            The "full" privative clause was introduced in the Code in the amendments of September 2000. The insertion of the "full" privative clause in the Code is compelling evidence that Parliament intended that deference be given to decisions of appeals officers. The Court's intrusion into the decisions of appeals officers would be contrary to the intention of Parliament. As stated by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at p. 963:

[...]    A board which is created and protected by a privative clause is the manifestation of the will of Parliament to create a mechanism that provides a speedy and final means of achieving the goal of fair resolution of labour-management disputes. To serve its purpose these decisions must as often as possible be final. If the courts were to refuse to defer to the decisions of the Board, they would negate both the very purpose of the Act and its express provisions.

[32]            With regard to the second factor, I believe that the expertise of appeals officers lies in determining whether circumstances in a workplace constitute a danger as defined in the Code. This is a question of mixed fact and law that is fact-intensive. Appeals officers are required to interpret the definition of danger in the Code, and then to assess the circumstances in a workplace, to determine whether they fall within that definition.

[33]            Appeals officers are given broad powers of investigation and inquiry under the Code to enable them to fulfill this objective. They have all of the powers, duties and immunity of health and safety officers, as provided for in subsection 145.1(2) of the Code. For example, they can enter any work place to conduct inspections and investigations, collect materials for testing, and compel the production of documents and statements. Appeals officers also have additional powers of inquiry not given to health and safety officers. These powers are listed in section 146.2 of the Code and include such powers as the ability to summon and enforce the attendance of witnesses, to administer oaths and affirmations and receive and accept evidence, to examine records and make inquiries, and generally, to determine the conduct of appeal proceedings.

[34]            As fact-finding comprises a substantial portion of the analysis, I am of the view that appeals officers have greater expertise than the Court in the determination of whether circumstances in a workplace constitute a danger as defined in the Code. Appeals officers have the advantage of being able to enter a workplace and to assess the conditions within. Given the Court's inability to assess the conditions in a workplace first hand, it is not in a position to interfere with the findings made by appeals officers.

[35]            The third factor requires the Court to take into account the purpose of the statute. The Code is divided into three distinct parts that may be construed independently of the others. Part II of the Code concerns the occupational health and safety of workers in the federal jurisdiction. Section 122.1 of the Code provides as follows:

[36]            The specific purpose of the authority to issue directions under subsection 145(2) of the Code is to authorize immediate action to prevent injuries caused by work duties. Under this provision, the responsible officer must determine whether a situation of danger exists, and if necessary, order to an employer to take immediate steps "to correct the hazard or condition or alter the activity that constitutes the danger" or "protect any person from the danger". As the provision at issue is concerned with the protection of the public, greater deference should be accorded to decisions of appeals officers (Pezim, supra).

[37]            The fourth factor, the nature of the problem, involves the determination of whether the hazard, condition or activity in a workplace constitutes a danger within the meaning in the Code. As stated above, this is a question of mixed fact and law that is fact-intensive. Appeals officers are required to interpret the definition of danger in the Code, and then to assess the circumstances in a workplace to determine whether they fall within that definition. I cannot accept the applicants' assertion that this is a pure question of law. Although appeals officers are required to interpret the definition of danger as it exists in the Code, this cannot be done in a vacuum. It is also necessary that a factual inquiry be undertaken with regard to the specific circumstances in a workplace to determine whether they fall within the definition of danger in the Code.

[38]            An application of the factors in the pragmatic and functional approach suggests that generally considerable deference should be given to decisions of appeals officers. In my opinion, when reviewing the decisions of appeals officers, the Court should adopt a standard of patent unreasonableness.

[39]            However, this case is unique in that the amendments to the Code in September 2000 also introduced a new definition of danger and this is the first time that a Court has been asked to review the interpretation that appeals officers have given to the new definition of danger. This suggests that the nature of the problem is more law-intensive, as the Court is required to assess the appeals officer's interpretation of the new definition of danger. In fact, all of the applicants' submissions are centred around the appeals officer's interpretation of the new definition of danger; the applicants have not challenged any of the appeals officer's findings of fact.

[40]            I agree that for the purposes of this case alone, the nature of the problem is more law-intensive. Yet, this does not mean that the Court should adopt the standard of correctness that is advocated by the applicants. The appeals officer is a specialized decision maker, and the Supreme Court of Canada has held that when considering decisions of specialized tribunals, and more particularly in the context of labour relations where the decision is protected by a broad privative clause, deference extends both to the determination on the facts and the interpretation of the law. In Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, McLachlin J. held at p. 669:

Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [...]

[41]            Nevertheless, the Court's analysis will have a precedential value on the decisions of other appeals officers which may ultimately have an effect on the health and safety of employees. This suggests that more scrutiny should be given to the decision of the appeals officer in the present case.

[42]            For these reasons, I am of the view that the Court should undergo "significant searching or testing" when reviewing the decision of the appeals officer. As such, the applicable standard in the present case is reasonableness simpliciter.

Application to the appeals officer's decision.

            a)         What reasons did the appeals officer give for his decision?

[43]            The safety officer had issued his directions pursuant to paragraphs 145(2)(a) and (b) of the Code on the ground that all law enforcement activity conducted by park wardens without a sidearm as standard equipment was dangerous because human behaviour was unpredictable and park wardens might need to apply lethal force with a sidearm. In other words, park wardens engaged in law enforcement activities were exposed to risks that had the potential to cause injury.

[44]            The appeals officer agreed with the safety officer that park wardens are subject to increased risks because of their secondary responsibility in responding to criminal matters. Given the number and variety of law enforcement activities that park wardens are involved in, there will be times when it will be impossible for them to retreat from the scene and reposition in order to evaluate the proper course of action to be taken. In some situations, they may be at risk of grievous bodily harm or death.

[45]            Notwithstanding, the appeals officer set aside the directions of the safety officer because he was of the opinion that the safety officer had confused risk with danger and that the safety officer had conducted an investigation which was largely a paper exercise. According to the appeals officer, the safety officer's decision was based on the hypothetical possibility that injury might occur since there was no factual basis to support his finding of the existence of danger as defined by the Code for Mr. Martin or for any other park warden throughout the national parks.

            b)         Do these reasons support the decision?

[46]            In Law Society of New Brunswick, supra, the Supreme Court of Canada affirmed that where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. When reviewing a decision, it is not necessary that every element of the decision be reasonable, so long as the reasons as a whole are supported by the decision. As stated by the Court at para. 56:

This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

[47]            In the case at bar, applying a somewhat probing examination to the appeals officer's analysis and decision, taken as a whole, I am satisfied that the reasons are tenable and it can not be said that they do not support the decision. While I do not necessarily agree with every element of the appeals officer's reasoning, I do not believe that the error identified affects the decision as a whole for the following reasons.

[48]            In order to understand the appeals officer's decision, it is necessary to consider the definition of danger as it had existed prior to September 2000, and to determine the difference between the "old" and the "new" definition of danger, keeping in mind the modern approach to interpretation which the Supreme Court of Canada has recently confirmed to be the correct approach to statutory interpretation. In R. v. Jarvis, [2002] S.C.J. No. 76 (QL), Major and Iacobucci JJ. stated at para. 77:

[...] one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute. [...]

[49]            In the pre-amended Code, the definition of danger read as follows:

[50]    The concept of danger as it existed in the pre-amended Code was not intended to deal with danger in the broadest sense of the word. What distinguished a danger within the meaning of the legislation from a danger in the general sense of the term was its immediate nature. In order to constitute danger as defined in the legislation, the hazard or condition must have been perceived to be immediate and real. Accordingly, hypothetical or speculative risks were not to be considered (David Pratt and Gray Coach Lines Limited, (1988) 1 CLRBR (2d) 310). The danger must also have been present at the time of the health and safety officer's investigation (Canada (Attorney General) v. Bonfa (1990), 73 D.L.R. (4^th) 364).

[51]            The "new" definition of danger, as it currently exists in subsection 122(1) of the Code, provides as follows:

[52]            The distinction between the old and new definition of "danger" was explained by the same appeals officer (Mr. Cadieux) in the case of Welbourne and Canadian Pacific Railway Co., [2001] C.L.C.A.O.D. No. 9, as follows:

[53]            The current definition of danger sets out to improve the definition of danger found in the pre-amended Code, which was believed to be too restrictive to protect the health and safety of employees. Pursuant to the jurisprudence developed around the definition of danger in the pre-amended Code, the danger had to be immediate and present at the time of the safety officer's investigation. The new definition broadens the concept of danger to allow for potential hazards or conditions or future activities to be taken into account. Therefore, the safety officer can look beyond the immediate circumstances that exist at the time of his investigation to determine whether "danger" exists as defined in the Code. However, although the new definition of danger allows for a future activity to be taken into consideration, this is not an open-ended expression. The doctrine of reasonable expectation still applies. In order to constitute danger as defined in the Code, it must be reasonable to expect that the prospective hazard, condition or activity will cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity modified. Therefore, although the danger can be prospective, the doctrine of reasonable expectation still excludes hypothetical or speculative situations.

[54]            This interpretation of the new definition of danger has been adopted and applied by other appeals officers in subsequent cases (Abood and Air Canada, [2003] C.L.C.A.O.D. No. 2; Canada (Correctional Service) and Schellenberg, [2002] C.L.C.A.O.D. No. 6; International Longshore and Warehouse Union and Pacific Coast Terminals Co., [2002] C.L.C.A.O.D. No. 16; Bouchard and Canada (Correctional Service), [2001] C.L.C.A.O.D. No. 28).

[55]            I agree with the above analysis made by Mr. Cadieux in Welbourne, supra. To paraphrase, the new definition of danger in the Code makes it clear that any potential hazard or condition or future activity can constitute a danger. This means that a safety officer can look beyond the immediate circumstances that exist at the time of his investigation to determine whether "danger" exists as defined in the Code.

[56]            Furthermore, it is evident to me that the amended definition still encompasses the concept of reasonable expectation which excludes speculative situations: the provision specifically provides that "the future activity could reasonably be expected to cause injury or illness to the person exposed". This requires evidence and obliges the safety officer to perform an objective analysis of a particular situation.

[57]            I agree with the appeals officer that in the absence of specific evidence indicating when grievous bodily harm or death could reasonably occur to a park warden performing law enforcement activity, a safety officer would have to conclude on the absence of danger since he would be faced strictly with a hypothetical or speculative situation.

[58]            However, the new definition also clearly states that a hazard, condition or activity could constitute a danger "whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity". As such, contrary to what was indicated by the appeals officer, I am of the view that it is not necessary that there be a reasonable expectation that the injury or illness will occur immediately upon exposure to the activity in order to constitute danger within the meaning in the Code.

[59]            Nevertheless, in my opinion, the new definition still requires an impending element because the injury or illness has to occur "before the hazard or condition can be corrected or before the activity is altered".

[60]            Therefore, to summarize, I believe that the appeals officer imposed an unnecessary condition in requiring that there be a reasonable expectation that the injury or illness occur immediately after the exposure to the activity. Yet, this error in my opinion did not affect his decision as a whole. The basis of the appeals officer's decision was that there was no danger within the meaning in the Code because the danger in this case was entirely hypothetical and speculative, Hence, in my view, the appeals officer would have still reached the same conclusion regardless of the error.

[61]            The applicants wish that this Court adopt a generous interpretation of the definition of "danger" as it best ensures the goal of protecting the public over other interests. While I recognize that narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided, Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (Ont. C.A.), I believe the new definition of "danger" has to be read in context, taking into account the major repercussions that can be caused by a finding of danger.

[62]            A direction under subsection 145(2) of the Code is a specialized instrument offering enormous powers to a safety officer - sufficient in appropriate circumstances to shut down a company or cause cessation of a national activity.

[63]            Therefore, in determining whether law enforcement activity without a sidearm constitutes a danger to park wardens, it is necessary to consider both the likelihood that the activity will cause injury, and the likelihood that the injury will arise before the law enforcement activity is altered. I agree with the respondent that the ability of park wardens to alter the law enforcement activity itself by the exercise of their good judgement, guided by training, is fundamentally important in the assessment of the likelihood of death or grievous bodily harm.

[64]            The safety officer expressed the view that danger existed because park wardens may find themselves at risk of grievous bodily harm or death, and are not provided with the necessary personal protective equipment, i.e. a sidearm. This conclusion is not founded on any specific set of facts but rests essentially on the general job description of park wardens. In effect, the complaint is that a park warden might at some indeterminate future point, need to apply lethal force with a sidearm.

[65]            This fails to consider whether it is likely that such a risk would present itself and whether a sidearm would be of assistance in reducing this risk. If the mere presence of a risk in a job description is sufficient for a safety officer to make a finding of danger, then directions under subsection 145(2) of the Code would have to be issued for every job which entailed the same element of risk. I do not think that such a result was intended by the legislator.

[66]            I fully agree with the conclusion expressed by the appeals officer that the determination of what level of law enforcement involvement and what specific protective measure should be recommended for each and every park warden is a matter of risk analysis and control. It is not helpful to declare "danger" as defined in the Code in the absence of evidence that would establish it.

[67]            In summary, applying a somewhat probing examination of the decision of the appeals officer, I find that the reasons given, taken as a whole, are tenable and that the mistake that he made when interpreting the new definition of danger does not affect his decision as a whole.

Mootness

[68]            The respondent submits that this case is moot as law enforcement activity as it existed at the time of the complaint no longer exists. After this complaint was filed, law enforcement by park wardens changed with the introduction of Guidelines for Risk Mitigation. Furthermore, should park wardens return to law enforcement, such duties will be further changed by the evolution of national law enforcement policy as influenced by the judgment of the appeals officer and the completion of a risk assessment.

[69]            In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada outlined a two step approach that is to be used in the determination of whether a case is moot. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

[70]            While it is possible that the guidelines may have changed the law enforcement by park wardens, they still will have to apply the new definition of danger in the future. Furthermore, this case sets out the standard of review that is to be applied to the decisions of appeals officers under the amended Code. Thus, I disagree with the respondent that this case has become academic.

[71]            For all these reasons, this application for judicial review is dismissed with costs.

                                                  ORDER

THIS COURT ORDERS that the application for judicial review is dismissed with costs.

                                                                      "Danièle Tremblay-Lamer"

J.F.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-950-02

STYLE OF CAUSE: DOUGLAS MARTIN and PUBLIC SERVICE ALLIANCE OF CANADA

and

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                   Vancouver, British Columbia

DATE OF HEARING:                                     August 23, 2003

REASONS FOR ORDER

AND ORDER OF    THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

DATED:                      October 6, 2003

APPEARANCES:

Mr. Andrew Raven                                               FOR APPLICANTS

Mr. Paul Champ

Mr. Kirk Lambrecht, Q.C.                                               FOR RESPONDENT

Mr. J. Sanderson Graham

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne

Barristers & Solicitors

1600-220 Laurier Avenue West

Ottawa, Ontario

K1P 5Z9                                                               FOR APPLICANTS

Attorney General of Canada

Department of Justice

East Memorial Building

284 Wellington Street, Room 2211

Ottawa, Ontario

K1A 0H8                                                              FOR RESPONDENT