Date: 20081007
Docket: T-2110-07
Citation: 2008 FC 1116
Montréal, Quebec, the 7th day of October 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Applicant
and
ÉRIC VANDAL, JACQUES
ST-PIERRE,
JOËL TURBIS AND PHILIPPE GOSSELIN
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application for judicial review of the interlocutory decision of an
appeals officer (AO) appointed under section 145.1 of the Canada Labour
Code, R.S.C. 1985, c. L‑2 (CLC). That
decision dismissed the preliminary objection made by the applicant (the
employer) to the AO’s jurisdiction to hear an appeal by the respondents (the
employees).
[2]
The
appeal was from the decision of a health and safety officer (HSO) designated
under s. 140 of the CLC whom the employer had notified of the employees’
refusal to perform an activity included in their work. In his decision, the HSO
had concluded under paragraph 128(2)(b) that the danger on which
the employees were relying to continue their refusal was a normal condition
of employment.
[3]
The
employer argued that the HSO’s conclusion was not a decision that could be
appealed under subsection 129(7) of the CLC, which was why it
objected to having the AO hear the employees’ appeal.
[4]
The
respondents argued that the appeal provided for in subsection 129(7) of
the CLC applied to their situation as employees whose right to continue their
refusal to work under section 128 of the CLC had not been recognized by
the HSO. According to the respondents, subsection 129(7) does not exclude danger related to a normal condition of employment
under section 128.
[5]
In
dismissing the employer’s preliminary objection, the AO found that the appeal
mechanism in subsection 129(7) authorized him to hear the appeal pursuant
to subsection 146.1(1) of the CLC. However, he reserved his decision on
whether the conditions entitling him to exercise his jurisdiction had been met
until after he heard the appeal.
II. Facts
[6]
The
respondents are correctional officers in a penitentiary in the employer’s
Correctional Service.
[7]
They
refused twice to escort a high‑profile inmate with a price on his head on
the ground that the escorts were unarmed, which put their health and safety in
danger.
[8]
In
support of their refusal, they relied on section 128 of the CLC, which
authorizes employees to refuse to perform a work activity if they have
reasonable cause to believe that the performance of the activity constitutes a
danger.
[9]
The
employer did not agree that a danger existed. On being informed of the
employees’ refusal, the employer therefore notified the HSO designated under
section 140 of the CLC, in accordance with subsection 128(13) of the
CLC.
[10] After being
notified of the continued refusal, the HSO conducted a summary investigation
and concluded that the employees were not entitled under subsection 128(1)
of the CLC to refuse to perform the requested activity because it was a normal
condition of employment, which meant that, according to paragraph 128(2)(b),
they could not rely on section 128 to continue their refusal.
[11] Dissatisfied,
the respondents appealed the HSO’s conclusion to an AO under
subsection 129(7) of the CLC.
[12] When the
hearing began, the employer informed the AO and the respondent employees that
it objected to the AO’s jurisdiction because, in its view, the HSO had not
decided but merely concluded that the danger relied on by the employees was a
normal condition of employment. Nonetheless, it was agreed that the AO would
make his decision on both the objection and the merits at the end of his
inquiry.
[13] However, the
applicant changed her mind and, despite the agreement, insisted that the AO
decide her objection before beginning his inquiry. Rather than confining
himself to what he had wisely agreed on with the parties or simply taking the
objection under advisement, the AO dismissed the objection and decided to hear
the appeal.
[14] In his
reasons for decision, the AO interpreted the right of appeal under
subsection 129(7) of the CLC in relation to the right to refuse to perform
a dangerous activity under section 128. He stated that the appeal
mechanism in subsection 146.1(1) of the CLC authorized him to hear the
employees’ appeal within the procedure of refusal to perform dangerous work. He
noted that, where such an appeal is brought, the AO must, in a summary way
and without delay, inquire into the circumstances of the decision or direction
and the reasons for it.
[15] Having
understood his role under the CLC in this way, the AO dismissed the employer’s
preliminary objection and decided to begin his inquiry into the
circumstances of the dispute in the appeal before him. However, he reserved
his decision on whether the conditions authorizing him to hear the case had
been met until after the inquiry.
[16] The employer’s
application for judicial review is from that interlocutory decision by the AO.
III. Issues
[17] This case
raises the following issues:
a. Is the
application for judicial review premature?
b. Did the AO
err in concluding that the CLC gave him jurisdiction to hear the respondents’
appeals?
IV. Analysis
Is the application for judicial review
premature?
[18] In its
preliminary objection, the employer basically argued that the AO did not have
the necessary jurisdiction to hear the appeal because the HSO had not decided
that the danger did not exist. According to the employer, only such a decision
by the HSO could authorize the employees to appeal to the AO under
subsection 129(7) of the CLC and could therefore give the AO the necessary
jurisdiction to hear the appeal.
[19] In his
decision dismissing the employer’s preliminary objection, the AO informed the
parties that, despite that decision, he intended to return to the issue of his
jurisdiction later, after conducting his inquiry and ascertaining whether the
conditions required for the exercise of his jurisdiction had actually been met.
This implied that the AO had the right to make a second interlocutory decision
on his jurisdiction, with the possibility of a second application for judicial
review before the decision on the merits of the case.
[20] “[R]ulings
made during the course of a tribunal’s proceeding should not be challenged
until the tribunal’s proceedings have been completed. The rationale for this
rule is that such applications for judicial review may ultimately be totally
unnecessary: a complaining party may be successful in the end result, making
the applications for judicial review of no value. Also, the unnecessary delays
and expenses associated with such appeals can bring the administration of
justice into disrepute.” [Zündel v. Canada (Human Rights Commission),
[2000] 4 F.C. 255 (F.C.A.), at paragraph 10; [2000] F.C.J.
No. 678 (QL).]
[21] This rule has
been reaffirmed by many courts, and it is a shame that it needs to be pointed
out once again. For example, the rule was described clearly, in the colourful
language of the late Justice Vallerand, in a unanimous decision of the
Quebec Court of Appeal:
[translation]
Grievance adjudication is a method
devised to quickly resolve the day‑to‑day conflicts that arise
under collective agreements. On the other hand, there is sometimes reason to
believe that evocation is . . . a method devised to achieve the
exact opposite, since it often represents a guerrilla war of attrition rather
than justice.
Be that as it may, the laudable referral
of grievances together with the less laudable concept, as I said, of evocation
seem to make it desirable that, except in obvious cases, we avoid considering,
let alone allowing, preliminary exceptions to dismiss. This Court has already
considered this question for interlocutory injunctions and ... for
grievances I would, in principle, make no exception for any case (lis pendens, res judicata, being
incapable, not having the necessary capacity, having no interest in the
suit). . . . I would confine myself to obvious cases in which
the action should be dismissed and, even then, only when there is the prospect
of a lengthy trial that is not justified given that the right is clearly and
undeniably unfounded. All other cases should get to the merits as quickly as
possible and have everything decided in one go without running the risk of two
evocations and two appeals. And
guerrilla warfare be damned!
[Collège d’enseignement général et
professionnel de Valleyfield v. Syndicat des employés de soutien S.C.F.P,
[1984] C.A. 633 (Que. C.A.), at page 634; [1984] J.Q.
No. 576 (QL).]
[22] It would have
been enough for the AO to simply take the objection under advisement and
confine himself to the initial agreement with the parties rather than
dismissing the objection and thus laying himself open to these proceedings by
the employer. However, the fact that the AO stated in his decision that he
intended to return to the issue of his jurisdiction after his inquiry and after
he was better acquainted with the facts amounted to taking the objection under
advisement so he could decide it later.
[23] Can the AO be
blamed for making that decision when the parties could not even agree on the
subject matter of the appeal? The employer argued that the HSO had not made any
decision on the alleged danger, while the employees argued the contrary and
reproached the HSO for not issuing any direction to minimize the danger they
alleged.
[24] Let us not
forget that this was an appeal under subsection 129(7) of the CLC. Where
such an appeal is brought, subsection 146.1(1) of the same code requires
the AO to inquire into the circumstances of the dispute in a summary way and
without delay. It is not until after the inquiry, once the AO is
better acquainted with the facts that gave rise to the dispute, that the AO
may logically vary, rescind or confirm the decision or direction and
issue any direction that the AO considers appropriate
(paragraphs 146.1(1)(a) and (b)). But the AO must be given
time to conduct the inquiry and must be allowed to decide later, on an informed
basis, what the AO is responsible for deciding under the CLC.
[25] In his
decision, the AO merely interpreted the appeal procedure from which his
jurisdiction arose, and he was perfectly entitled to do so. He decided that
that procedure authorized him to hear the appeal, but this does not mean that
he made a decision concerning his jurisdiction over the parties’ dispute. On
the contrary, the AO reserved his decision on the issue of his jurisdiction,
saying that he would return to this issue only after inquiring into the
circumstances of the dispute in a summary way, as required by the appeal
procedure. The employer’s proceedings result from a restrictive, literal view
of certain sections of the CLC and of the role the CLC gives the appeals officer
in the context of the parties’ conflict.
[26] The Court
cannot support such a view. The appeal procedure provided for in the CLC must
be interpreted liberally so the employees can make their arguments. To this
end, we should let the AO conduct his inquiry and then decide what the AO is
responsible for deciding.
[27] While it is
up to the AO to decide this, it should nonetheless be noted that the appeal
provided for in subsection 129(7) seems to relate to the situation in
which the HSO has not recognized an employee’s right to continue to refuse to
work under section 128, which appears to be the case here. However, that
section does not exclude danger related to a normal condition of employment
under section 128 of the CLC.
[28] The
record shows that, after being notified by the employer of the employees’
refusal to perform the activity at issue, the HSO noted on a form that the
activity being required of them departed only minimally from their normal
conditions of employment. The HSO halted his investigation there, withdrew from
the refusal to work procedure and concluded that the refusal to work was not
authorized by the CLC.
[29] Did
that note on a form amount to a decision that could be appealed? Should the HSO
have continued his investigation and issued directions rather than withdrawing
from the procedure? Did the HSO’s withdrawal amount to a refusal to act? Does
the AO’s inquiry show that the conditions required for his intervention were
met?
[30] These
are a few of the many questions the officer will have to decide following his
inquiry. It is up to the officer, if he can, to propose a remedy that can
resolve the conflict.
[31] For
the moment, it is enough to note that a risk characterized as a “normal
condition of employment”, which appears to be what the HSO concluded here, may
also be a “danger” for the purposes of the CLC, which may justify HSOs and the
Treasury Board of Canada in issuing directions to protect employees (Walton and Treasury Board (Correctional Service Canada), [1987] C.P.S.S.R.B. No. 216 (QL)).
[32] The AO’s
decision takes nothing away from the applicant’s rights and claims, since, if
it is correct, it loses nothing by learning this later. In the opposite case,
the procedure provided for in the CLC will not have been needlessly delayed.
[33] For these
reasons, therefore, it must be concluded that the judicial review proceedings
are premature. Rather than pushing the AO into dismissing its objection, the
employer should have stuck to the initial agreement and waited for the AO to
decide that objection after his inquiry, as stated in the decision challenged
in these proceedings. This finding that the proceedings are premature means
that the application for judicial review must be dismissed without the Court
having to decide the other issue. It will be up to the AO to decide that issue
after having reserved his decision on it.
[34] The parties
informed the Court that the appeal was fortunately able to continue, thus
allowing the AO to complete his inquiry without waiting for the instant
decision. While the impact of these proceedings has not been too great in terms
of the delays caused, the same cannot be said of the costs.
V. Conclusion
[35] For these
reasons, the application for judicial review will therefore be dismissed as
premature, and the applicant will pay the costs of the application.
JUDGMENT
FOR THESE REASONS, THE COURT:
DISMISSES the application for judicial review
WITH COSTS against the applicant.
“Maurice
E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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