Date:
20080204
Docket: A-562-06
Citation: 2008 FCA 43
CORAM: DÉCARY J.A.
SHARLOW J.A.
TRUDEL J.A.
BETWEEN:
ALLAN
WOOLLARD
Appellant
and
CANADIAN
PACIFIC RAILWAY COMPANY
Respondent
Heard at Vancouver, British Columbia, on February 4,
2008.
Judgment delivered from the Bench at Vancouver, British Columbia, on February 4, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY
J.A.
Date:
20080204
Docket:
A-562-06
Citation:
2008 FCA 43
CORAM: DÉCARY
J.A.
SHARLOW
J.A.
TRUDEL
J.A.
BETWEEN:
ALLAN WOOLLARD
Appellant
and
CANADIAN
PACIFIC RAILWAY COMPANY
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Vancouver, British Columbia, on February 4, 2008)
DÉCARY J.A.
[1]
On
June 12, 2003, health safety officer Noel (Officer Noel) issued a direction to
Canadian Pacific Railway (CPR) pursuant to subsection 145(1) of the Canada
Labour Code (the Code). A complaint to the Human Resources Development
Canada had been filed by Allan Woodward (the Appellant) with respect to an
alleged failure by CPR to comply with the Clothing Storage provisions of the Canada
Occupational Health and Safety Regulations, S.O.R./86-304 (the
Regulations). Officer Noel had concluded that CPR had “failed to provide a
change room and separate storage area to ensure protection of employees exposed
to wet or contaminated work clothing.”
[2]
The
Clothing Storage Provisions at issue are:
|
9.44 (1) A
change room shall be provided by the employer where
(a) the
nature of the work engaged in by an employee makes it necessary for that
employee to change from street clothes to work clothes for health or safety
reasons; or
(b) an
employee is regularly engaged in work in which his work clothing becomes wet
or contaminated by a hazardous substance.
(2) Where
wet or contaminated work clothing referred to in paragraph (1)(b) is changed,
it shall be stored in such a manner that it does not come in contact with
clothing that is not wet or contaminated.
(3) No
employee shall leave the work place wearing clothing contaminated by a hazardous
substance.
|
9.44 (1) Un
vestiaire doit être fourni par l’employeur dans les cas suivants :
a) lorsque
le travail des employés les oblige à enlever leurs vêtements de ville et à
revêtir une tenue de travail pour des raisons de santé ou de sécurité;
b)
lorsqu’un employé exécute habituellement un travail au cours duquel sa tenue
de travail devient mouillée ou contaminée par une substance dangereuse.
(2) Les
vêtements de travail mouillés ou contaminés visés à l’alinéa (1)b) doivent,
une fois enlevés, être conservés à l’écart des autres.
(3) Il
est interdit à un employé de quitter les lieux de travail avec des vêtements
contaminés par une substance dangereuse.
|
[3]
CPR
appealed the decision to Appeals Officer Malanka pursuant to subsection 146(1) of
the Code. The Appeals Officer conducted a de novo hearing, (see Martin
v. Canada (Attorney
General),
2005 FCA 156 at para. 8). He ended up confirming the direction noted and issued
an additional direction: in his view, CPR had also contravened section 10.4 of
the Regulations in failing to appoint a qualified person to carry out the
hazard investigation required by that section.
[4]
CPR
sought judicial review of the Appeals Officer’s decision in the Federal Court.
Beaudry J. granted the application (2006 FC 1332). In rendering his decision,
the Judge held that CPR had been deprived of its right to procedural fairness
in that the Appeals Officer had failed to provide CPR with an opportunity to
make submissions regarding its alleged failure to carry out a hazard
investigation pursuant to section 10.4 of the Regulations. Additionally,
Beaudry J. found that the decision by the Appeals Officer upholding the
direction of Officer Noel with respect to section 9.44 of the Regulations was
patently unreasonable. As a result, Beaudry J. remitted the matter back to
another Appeals Officer for redetermination.
[5]
The
Appellant Woollard appealed to this Court only that portion of the judgment of
Beaudry J. setting aside the Appeals Officer’s decision with respect to section
9.44.
[6]
There
being no appeal with respect to the additional direction of the Appeals Officer
in relation to section 10.4, this appeal proceeds on the basis that there was a
breach of CPR’s right to procedural fairness with respect to the additional
direction issued by the Appeals Officer.
[7]
As
a preliminary issue before us, CPR argues that it is not possible to isolate
the portion of Beaudry J.’s decision dealing with the breach of procedural
fairness and that ultimately the breach of procedural fairness permeated the
entire decision of the Appeals Officer.
[8]
We
agree.
[9]
Whatever
the merits of the direction pertaining to section 9.44 of the Regulations, it
appears clearly from the reasons of the Appeals Officer that in upholding
Officer Noel’s direction with respect to that section, he relied on CPR’s
alleged failure to conduct a proper hazard assessment as required by section
10.4: see, for example
[101] However, to interpret and apply
paragraphs 9.44(1)(b) and 9.44(2) of the COHSR, it is necessary to consider
these provisions in light of subsection 10.4(1) of the COHSR.
.
. .
[109] CPR did not present evidence at the
hearing of any other hazard assessment related to the work of machine operators
and their exposure to hazardous substances. I can only conclude from this that
CPR had not carried hazardous assessment pursuant to subsection 10.4(1) that
accords with the definition of “hazardous substance” found in section 122(1) of
the Code. Therefore, I conclude from this that CPR was not in a position to
demonstrate that work clothing worn by its machine operators was not made unfit
by diesel fuel, lubricating grease, antifreeze or hydraulic oils. To the
contrary, CPR’s past procedures of providing a separate room to store wet or
contaminated work clothing tends to suggest that the employer regarded the wet
or contaminated work clothing to be unfit to remain in the living quarters of
employees.
.
. .
[121] Given the facts of the present case and
based on CPR’s past practice of providing its machine operators working at
remote locations with a separate change and storage, as well as the absence of
the proper hazard assessment by CPR as required by section 10.4 of the COHSR
and the definition of a hazardous substance in section 122(1) of the Code, I am
confirming item 2 of the direction issued by HSO Noel to CPR on June 12, 2003
to comply with the requirements of paragraph 125.1(i) of the Canada Labour
Code, Part II, and of subsections 9.44(1), (2) and (3) of the Canada
Occupational Safety and Health Requirements.
[10]
In
the circumstances, the finding of the Appeals Officer with respect to section
9.44 is so closely linked to his finding with respect to section 10.4, that the
setting aside of the latter for breach of procedural fairness puts in doubt the
finding with respect to the former.
[11]
The
appeal will be dismissed with costs.
"Robert
Décary"
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-562-06
STYLE OF CAUSE: Allan
Woollard v. Canadian Pacific Railway Company
PLACE OF
HEARING: Vancouver, British
Columbia
DATE OF
HEARING: February
4, 2008
REASONS FOR
JUDGMENT BY: DÉCARY J.A.
SHARLOW
J.A.
TRUDEL
J.A.
DELIVERED
FROM THE BENCH BY: DÉCARY
J.A.
DATED: February 4, 2008
APPEARANCES:
Mr. G. James
Baugh FOR THE APPELLANT
Mr. Charles
Harrison FOR THE
RESPONDENT
Ms. Jennifer Walker
SOLICITORS
OF RECORD:
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McGrady &
Company.
Vancouver, B.C.
|
FOR THE APPELLANT
|
|
Fasken
Martineau
Vancouver,
B.C.
|
FOR THE RESPONDENT
|
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