[1] This appeal from a decision of the Federal Court, reported as [2004] 1 F.C. 625, involves the question of whether about 150 park wardens performing law enforcement duties in National Parks should be allowed to carry sidearms.

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 park wardens performing law enforcement duties under the National Parks Act, S.C. 2000, c. 32.

[3] In June 2000, the appellant, Douglas Martin, a park warden in Banff National Park, filed a complaint under Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 ("Code"). Part II of the Code deals with occupational health and safety. The complaint alleged that park wardens performing law enforcement duties should be equipped with sidearms and be trained to use them.

[4] An investigation was conducted by R.G. Grundie, a Health and Safety Officer designated by the Minister of Labour under subsection 140(1) of the Code. By Direction dated February 1, 2001, Mr. Grundie stated that he considered that certain law enforcement activities carried out by park wardens would place them at risk of grievous bodily harm or death because they were not provided with necessary personal protective equipment:

Wardens in that Park who are expected to engage in law enforcement activities such as patrols, intelligence gathering, investigations of possible offences and arrests, for resource management purposes and the maintenance of the public peace, activities in the performance of which they may find themselves at risk of grievous bodily harm or death, are not provided with the necessary personal protective equipment. In like circumstances, officials carrying out similar duties such as federal Fisheries Officers, Environment Canada Wildlife Enforcement Officers and provincial conservation officers, are authorized to carry sidearms.

[5] Therefore, pursuant to paragraph 145(2)(a) of the Code, he directed Parks Canada to take measures within six months to:

(a) correct the hazard or condition or alter the law enforcement activity of the wardens, or

(b) protect the wardens from the danger.

[6] Pursuant to paragraph 145(2)(b), he further directed Parks Canada to "discontinue the activity that constitutes a danger until you have complied with the direction issued in (paragraphs (a) and (b))."

[7] Both Parks Canada and Mr. Martin (and the Public Service Alliance of Canada) appealed Mr. Grundie's decision to an appeals officer pursuant to subsection 146(1) of the Code. Parks Canada sought recision of Mr. Grundie's decision. Mr. Martin and the PSAC sought an order expressly requiring Parks Canada to issue sidearms or to develop a procedure for the issuance of sidearms.

[8] Hearings were conducted by Serge Cadieux, an appeals officer designated by the Minister under subsection 145.1(1) of the Code. By decision dated May 23, 2002, Mr. Cadieux allowed the appeal of Parks Canada and rescinded Mr. Grundie's decision. He was of the opinion that there was no evidence to conclude that a situation of "danger" existed as that term is defined in section 122 of the Code.

[9] Mr. Martin and the PSAC sought judicial review in the Federal Court. By Order dated October 6, 2003, the Federal Court dismissed the judicial review.

[10] Mr. Martin and the PSAC now appeal to this Court.

ISSUE

[11] The appellants say that park wardens performing law enforcement duties should be issued sidearms and be trained to use them. They ask that this Court remit the matter to the appeals office for redetermination having regard to the proper definition of the term "danger" in section 122 of the Code.

ANALYSIS

Standard of Review

[12] It is first necessary to address the standard of review. There are no errors of fact alleged in the Federal Court judge's decision. This Court will review her decision for errors of law on a correctness standard. In determining whether the judge erred in law, this Court must assess her determination of the standard of review of the decision of appeals officer Cadieux. The Court will also assess Mr. Cadieux's decision, applying the appropriate standard of review.

[13] The judge conducted an extensive standard of review analysis. Her penultimate finding was that the standard of review of a decision of an appeals officer under the Code was patent unreasonability. Indeed, the judge quoted McLachlin J. (as she then was) 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, in which McLachlin J. expressly found that decisions of specialized tribunals, such as the Labour Board, are to be accorded deference both as to the determination of facts and the interpretation of the law and that the Court should only interfere if the interpretation placed on legislation by the Tribunal was patently unreasonable. To this point, I agree with the judge's analysis. However, she then went on at paragraph 41 of her reasons:

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.

[14] As a result, she concluded that the applicable standard of review was reasonableness simpliciter. In this Court, Mr. Martin and the PSAC suggested an even less deferential standard of review. They argued that because this is the first time that the issue of the new definition of "danger" in section 122 of the Code has come before the Court, because the decision will have precedential value and because the question is one of vital importance, the appropriate standard of review should be correctness.

[15] It is true that the courts have accorded less deference to decisions of tribunals where questions of law with precedential value are at issue. However, these instances generally involved statutory appeals. See, for example, Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45.

[16] I think the situation is different in the case of judicial review of tribunal decisions that are subject to strong privative clauses. In the case of decisions of appeals officers under the Code, the privative clauses are worded in strong terms:

146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any court.

146.4 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.

146.3 Les décisions de l'agent d'appel sont définitives et non susceptibles de recours judiciaires.

146.4 Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action de l'agent d'appel exercée dans le cadre de la présente partie.

[17] Professor David Mullan has observed that in such cases "the legislature has expressed confidence in the ability of a decision-maker to interpret questions of law arising under its home statute and to itself establish a corpus of decisions having precedential value in the sense of application to many future cases." See Mullan, David J., "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59 at 77. One might question the wisdom of protecting legal interpretations of non-legally trained appeals officers from more intrusive review by the courts. However, the Court must take the statute as it finds it. The Court cannot apply common law principles that are implicitly inconsistent with strong legislative language. Where Parliament has expressed itself in the strong terms it has in the Canada Labour Code, I think it would be inconsistent for the courts to arrogate to themselves the power to establish precedence for a tribunal to follow in respect of the interpretation of its home statute.

[18] For these reasons, I am of the opinion that the standard of review of Mr. Cadieux's decision is patent unreasonability.

Mr. Cadieux's Failure to Apply Relevant Provisions

[19] Mr. Grundie's decision was made under subsection 145(2) of the Code. Subsection 145(2) applies when a health and safety officer considers that the performance of an activity constitutes a danger to an employee while at work. Subsection 145(2) provides:

145(2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,

(a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to

(i) correct the hazard or condition or alter the activity that constitutes the danger, or

(ii) protect any person from the danger; and

(b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer's directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.

145(2) S'il estime que l'utilisation d'une machine ou chose, une situation existant dans un lieu de travail ou l'accomplissement d'une tâche constitue un danger pour un employé au travail, l'agent_:

a) en avertit l'employeur et lui enjoint, par instruction écrite, de procéder, immédiatement ou dans le délai qu'il précise, à la prise de mesures propres_:

(i) soit à écarter le risque, à corriger la situation ou à modifier la tâche,

(ii) soit à protéger les personnes contre ce danger;

b) peut en outre, s'il estime qu'il est impossible dans l'immédiat de prendre les mesures prévues à l'alinéa a), interdire, par instruction écrite donnée à l'employeur, l'utilisation du lieu, de la machine ou de la chose ou l'accomplissement de la tâche en cause jusqu'à ce que ses instructions aient été exécutées, le présent alinéa n'ayant toutefois pas pour effet d'empêcher toute mesure nécessaire à la mise en oeuvre des instructions.

[20] Mr. Cadieux was critical of Mr. Grundie for proceeding under subsection 145(2). In his view, Mr. Grundie should have assessed Mr. Martin's complaint under subsection 124 and made any direction under subsection 145(1) of the Code. Section 124 provides:

124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

124. L'employeur veille à la protection de ses employés en matière de santé et de sécurité au travail.

[21] In the case of a determination by a health and safety officer that a provision of Part II of the Code has been contravened, in this case section 124, the health and safety officer may issue a direction under subsection 145(1):

145. (1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to

(a) terminate the contravention within the time that the officer may specify; and

(b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.

145. (1) S'il est d'avis qu'une contravention à la présente partie vient d'être commise ou est en train de l'être, l'agent de santé et de sécurité peut donner à l'employeur ou à l'employé en cause l'instruction_:

a) d'y mettre fin dans le délai qu'il précise;

b) de prendre, dans les délais précisés, les mesures qu'il précise pour empêcher la continuation de la contravention ou sa répétition.

[22] Mr. Cadieux determined that Mr. Grundie had made a finding of a contravention of section 124.

[147] In this case, the health and safety officer concluded

... that the Agency is not taking all reasonable steps to mitigate or safely manage the recognized risks inherent to the warden's law enforcement activities.

This is, in my opinion, a finding that the employer was not complying with its general obligation under section 124 of the Code to protect its employees. ...

He then observed that, had Mr. Grundie proceeded under subsection 145(1), it would have been "more appropriate, effective and beneficial" to everybody involved in this case:

[148] In my opinion, had the health and safety officer approached the arming issue from subsection 145(1), his intervention could have proven to be more appropriate, effective and beneficial to everybody involved in this case. Having approached it from subsection 145(2) of the Code, as we will see, will frustrate the employees in this case.

[23] According to Mr. Cadieux, by proceeding under subsection 145(2), Mr. Grundie invoked a "provision that is highly specific in that it deals with a restrictive concept that has been set at a very high standard .... The concept of 'danger' as defined in the Code is unique in that it only applies in exceptional circumstances" (paragraph 150). Mr. Cadieux was unprepared to find a "danger" in this case.

[24] However, Mr. Cadieux was of the opinion that section 124 "is sufficiently broad in scope to cover all professions where 'intentionality', or the unpredictability of human behaviour, is the predominant element of the work" (paragraph 198). He found that the law enforcement activities of park wardens involved intentionality and the unpredictability of human behaviour. With respect, if that was his view, he should have proceeded to determine the complaint under section 124 and, if necessary, issue a direction under subsection 145(1).

[25] Mr. Cadieux did not set forth the criteria he would have considered had he assessed the matter under section 124. It is not for this Court to prescribe those criteria. However, I would observe that section 122.1 provides that the purpose of Part II of the Code is to prevent injury occurring in the course of employment and that section 122.2 provides that in appropriate cases, protective measures including the provision of personal protective equipment, devices or materials are to be provided. Sections 122.1 and 122.2 state:

122.1 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.

122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

122.1 La présente partie a pour objet de prévenir les accidents et les maladies liés à l'occupation d'un emploi régi par ses dispositions.

122.2 La prévention devrait consister avant tout dans l'élimination des risques, puis dans leur réduction, et enfin dans la fourniture de matériel, d'équipement, de dispositifs ou de vêtements de protection, en vue d'assurer la santé et la sécurité des employés.

[26] At one time it was questionable whether an appeals officer could proceed under subsection 145(1) when a health and safety officer had made a previous determination under subsection 145(2). See Marine Terminals Inc. v. Longshoremen's Union Local 375

(2000), 192 F.T.R. 1 (T.D.), affirmed (2001), 213 F.T.R. 59 (C.A.). However, subsequent to that decision, the Code was amended by the addition of subsection 145.1(2) which provides:

(2) 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.

(2) Pour l'application des articles 146 à 146.5, l'agent d'appel est investi des mêmes attributions - notamment en matière d'immunité - que l'agent de santé et de sécurité.

[27] Under section 146.1, an appeals officer may "vary, rescind or confirm" a direction of a health and safety officer. If a health and safety officer has made a direction under subsection 145(2) that the appeals officer considers inappropriate, he may rescind that direction. However, because he now has all the powers of a health and safety officer, he may also vary it to provide for what he considers the health and safety officer should have directed.

[28] An appeal before an appeals officer is de novo. Under section 146.2, the appeals officer may summon and enforce the attendance of witnesses, receive and accept any evidence and information on oath, affidavit or otherwise that he sees fit, whether or not admissible in a court of law, examine records and make inquiries as he considers necessary. In view of these wide powers and the addition of subsection 145.1(2), there is no rationale that would justify precluding an appeals officer from making a determination under subsection 145(1), if he finds a contravention of Part II of the Code, notwithstanding that the health and safety officer had issued a direction under subsection 145(2).

[29] In this case, it was patently unreasonable for Mr. Cadieux not to have assessed the facts before him pursuant to section 124 and if he considered it appropriate, to issue a direction under subsection 145(1).

Mr. Cadieux's "danger" Analysis

[30] The question that Mr. Cadieux considered was whether, without sidearms, park wardens performing law enforcement activities were in "danger" as that term is defined in the Code. The definition is found in section 122:

"danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;

« _danger_ » Situation, tâche ou risque - existant ou éventuel - susceptible de causer des blessures à une personne qui y est exposée, ou de la rendre malade - même si ses effets sur l'intégrité physique ou la santé ne sont pas immédiats -, avant que, selon le cas, le risque soit écarté, la situation corrigée ou la tâche modifiée. Est notamment visée toute exposition à une substance dangereuse susceptible d'avoir des effets à long terme sur la santé ou le système reproducteur.

[31] Mr. Cadieux found that the definition of danger in the Code was not met for the following reasons:

1. there were no facts to support the allegation of danger and therefore danger could not be established objectively (paragraph 152);

2. assaults on park wardens could take place at any time but it could not be reliably established when or under what conditions this would happen; therefore the possibility of assaults is hypothetical (paragraph 153);

3. the who, what, when, where and under what circumstances are missing. This is because the argument is based on the unpredictability of human behaviour which is, by nature, hypothetical and speculative (paragraph 155);

4. anecdotal evidence of exposure to violence only confirms inherent risk in law enforcement duties. It does not help to decide the existence of danger as defined in the Code (paragraph 161);

5. it is not possible to look into the past to determine a present or a future danger (paragraph 162);

6. the risk has already been mitigated by the provision of reasonable protective equipment (paragraph 170);

7. with respect to vehicle stops and the existence of visitors with criminal records in parks, one cannot reach a conclusion of danger as defined in the Code in the absence of specific evidence (paragraphs 173 and 174);

8. studies recommending sidearms are useful for a risk assessment but not to establish danger (paragraph 175);

9. there is no evidence that park wardens ever faced grievous bodily harm. Potential situations of grievous bodily harm are a legitimate concern. However, the absence of positive knowledge that grievous bodily harm will occur does not accord with the definition of "danger" in the Code (paragraph 177);

10. although the bearing of sidearms is close to an industry standard, the industry standard itself cannot justify a finding of "danger" (paragraph 183); and

11. Mr. Grundie did not have regard for the requirement of "reasonable expectation". His findings were based on hypotheses. It was not established that injury would occur immediately upon exposure to current or future law enforcement activities (paragraph 196).

[32] I have considerable difficulty understanding Mr. Cadieux's reasoning. I cite a few examples of the difficulty. On the one hand he says that facts are missing to support Mr. Martin's allegations of danger and that therefore such allegations are hypothetical and speculative. On the other hand he says that anecdotal evidence of exposure to violence is not helpful and indeed that "look(ing) into the past to declare that a "danger" as defined in the Code exists" (paragraph 162) is not authorized.

[33] Mr. Cadieux finds that the risk of injury, which is part and parcel of the job of a park warden, has been mitigated effectively through specialized knowledge and training and by the provision of personal protective equipment. He does not explain why further mitigative measures, such as the provision of a sidearm, would not reduce the risk of injury further.

[34] Mr. Cadieux says that there is no evidence park wardens were ever faced with grievous bodily harm on the job. It is difficult to square this position with his earlier statement that evidence of past occurrence is not helpful and cannot be used to justify a finding of danger. He also says that there is no evidence such a situation would occur in the future. He does not explain what would satisfy the evidentiary requirement that he says must be met.

[35] Because law enforcement activity inherently involves the unpredictability of human behaviour, Mr. Cadieux finds that it cannot constitute a "danger" within the meaning of the definition. This would exclude a finding of "danger" in respect of any law enforcement activity generally. There is no explanation as to why, categorically, this would be the case.

[36] In summary, it is difficult to see how Mr. Cadieux leaves any room for evidence of any sort that would prove a danger within the meaning of the Code in these circumstances. Positive anecdotal experience of the past is rejected. Negative anecdotal experience is accepted. Evidence of risk of injury that could pertain to the future is rejected as being hypothetical or speculative.

[37] I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.

[38] In conducting a "danger" analysis, Mr. Cadieux was required to apply the definition of "danger" to the facts in evidence before him. He was required to consider potential hazard as well as future activity. In treating any evidence about potential hazard and future activity as being irrelevant, hypothetical or speculative, he was foreclosing the possibility of any evidence satisfying the definition.

[39] Mr. Cadieux says that section 124 and subsection 145(1) are more appropriate provisions of the Code to apply in this case. That may well be so. But it is by no means obvious that a finding of danger and directions under subsection 145(2) are absolutely foreclosed, as his reasons imply.

[40] Mr. Cadieux had evidence before him:

1. of anecdotal past incidents involving park wardens, albeit none of which involve grievous bodily harm or death;

2. that park wardens were issued bulletproof vests, batons, pepper spray and long-arms by Parks Canada; and

3. that the job description of park wardens

(a) require them to act as peace officers

(b) require them to conduct difficult and complex special law enforcement activities which include participating in raids, searching for physical evidence and clues, seizing exhibits, securing and serving warrants and making arrests

(c) require them to be prepared for frequent periods of intense concentration when involved in fast-moving, high risk enforcement situations; and

(d) says that park wardens are at risk of physical assaults, serious injury and possible death when engaged in enforcement duties and may be engaged in physical confrontations with violators who can be hostile, dangerous and armed with a weapon.

[41] This is all evidence that should have been taken into account by Mr. Cadieux in assessing the question of danger. It is evidence that should have been weighed by Mr. Cadieux in deciding whether Mr. Martin's complaint was justified.

[42] It is not for this Court to weigh that evidence or to come to any conclusion about whether the evidence rose to the level of a reasonable expectation of injury, or indeed whether park wardens should be issued handguns. That is for the appeals officer to determine. However, this Court is required to determine whether the appeals officer had regard to relevant evidence. The failure to take account of relevant evidence by him in this case was patently unreasonable.

CONCLUSION

[43] Because Mr. Cadieux failed to apply provisions of Part II of the Canada Labour Code, which he determined were applicable to this case, I find his decision to be patently unreasonable. It was also patently unreasonable for him to have failed to take account of relevant evidence. I would allow the appeal with costs here and in the Federal Court, set aside the decisions of the Federal Court and Mr. Cadieux and remit the matter to the Appeals Office for redetermination.

"Marshall Rothstein"

J.A.

"I agree.

Marc Noël J.A."

"I agree.

J. Edgar Sexton J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-491-03

STYLE OF CAUSE: DOUGLAS MARTIN ET AL v. ATTORNEY GENERAL OF CANADA

APPEAL FROM ORDER OF TREMBLAY-LAMER J. DATED OCTOBER 6, 2003 (DOCKET NO. T-950-02)

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: MARCH 15, 2005

REASONS FOR JUDGMENT

BY: ROTHSTEIN J.A.

CONCURRED IN BY: NOËL J.A.

SEXTON J.A.

DATED: MAY 6, 2005

APPEARANCES:

Mr. Andrew Raven

Mr. Paul Champ FOR THE APPELLANTS

Kirk N. Lambrecht, Q.C.

Mr. J. Sanderson Graham FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron, Ballantyne & FOR THE APPELLANTS

Yazbeck LLP

Ottawa, Ontario

John H. Sims, Q.C. FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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Martin v. Canada (Attorney General), 2005 FCA 156

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2005 FCA 156