Recent SCC decision clarifies application of health and safety inspection provision

The Supreme Court of Canada has clarified the provision related to health and safety inspection of a workplace laid out in the Canada Labour Code.

“This decision clearly states that federally regulated employers do not have a statutory obligation to conduct health and safety inspections of work locations that they don’t control,” says Olivier Lamoureux, associate at Gowling WLG International Ltd. in Montreal. 

“As you can imagine, this legal development is of major importance not only for Canada Post — which delivers mail to 9 million places along 72 million km of routes (most of them being private properties) — but also for any federally regulated companies involved in delivery activities on territories that they do not effectively control.”

The decision in Canada Post Corp. v. Canadian Union of Postal Workers was the long-awaited conclusion to an ongoing dispute over whether Canada Post’s duty to inspect its workplace for health and safety compliance should extend to all letter carrier routes and locations where mail is being delivered.

In 2012, a complaint was filed with Human Resources and Skills Development Canada by a representative of the union who sat on the Local Joint Health and Safety Committee at Canada Post’s Burlington, On. depot.

The complaint stated Canada Post had failed to comply with its obligations under s. 125(1)(z.12) of the CLC — which states employers must “ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year” — by not extending inspections beyond the depot to all letter carrier routes and delivery locations.

Despite a health and safety officer initially agreeing Canada Post was in violation of its inspection obligations, on appeal the appeals officer concluded the employer only had the obligation to perform annual inspection of the workplaces over which it had physical control.

That decision in judicial review was upheld by the Federal Court, but the Federal Court of Appeal reinstated the initial ruling that Canada Post was in violation of its obligations under the CLC.

Once before the Supreme Court, the appeals officer’s interpretation was found to be correct under the new criteria for judicial review, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, which was applied by the court in Canada Post.

“In Vavilov, this Court set out a revised framework for determining the applicable standard of review for administrative decisions,” wrote Justice Malcolm Rowe for the majority. “The starting point is a presumption that a standard of reasonableness applies.”

Rowe went on to write that the appeals officer’s reasoning was clear — his interpretation of the provision was applied to the facts before him, and the appeals officer concluded “the obligation to inspect the work place ‘is one that can only apply to an employer who has control over the physical work place.’”

“The interpretation he arrived at is harmonious with the text, context and purpose of the provision,” Rowe stated.

The dissenting justices — Rosalie Abella and Sheilah Martin — argued failure to inspect the worker’s routes, where they spend the majority of their workday, “is unreasonable and inconsistent with the purpose and text of the safety inspection provision.”

Abella, who wrote the dissent, called the appeals officer’s approach to safety inspections “all or nothing” and “deeply flawed.” She argued since Canada Post is in control of the activities of its letter carriers, it is bound by inspection duty. She noted Parliament moved to protect employees outside of employer-owned locations following the Nova Scotia Westray Mine tragedy, where 26 miners were killed in 1992.

“The Appeals Officer acknowledged that Canada Post has extensive and strict control over mail delivery by letter-carriers,” Abella wrote. “As he noted, it sets their routes down to minute details and dictates the manner of the mail delivery, ‘right down to the way they hold their satchels and how they walk the routes.’ This not only shows that Canada Post controls the ‘work activity’ of letter-carriers, it shows that the control is stringent.” 

The appeals officer did originally take into account the fact that, while agreeing Canada Post could not practically inspect workplaces it neither owns nor has a right to alter if hazards are identified, the company had implemented a Workplace Hazard Prevention Program aimed at identifying and reporting health and safety issues encountered by its letter carriers.  

Despite the dissent, the decision ultimately supports the idea that while promoting health and safety is an employer’s obligation, the practical ability of employers to conduct the inspections in some situations is also an important consideration.

“Although this decision was rendered under federal laws, I think the latter may become useful for lawyers practicing under provincial jurisdictions,” says Lamoureux, adding that the background principle set out in the decision “may well transcend the barriers of jurisdiction” going forward.

“A statute should not be interpreted in a manner that is impossible to apply in practice on the ground — which is what happened with the overruled Federal Court of Appeal decision,” he says.

“As a matter of fact, this could serve as a guide for professionals who might argue that practical and operational considerations in the workplace not only are important, but can constitute legitimate concerns in the context of a judicial review.”