Applying Vavilov: Canada Post and Health and Safety

The majority of the Supreme Court of Canada in Canada Post Corp. v. Canadian Union of Postal Workers applied its recently created new administrative law framework in Canada (Minister of Citizenship and Immigration) v. Vavilov to uphold the Occupational Health and Safety Tribunal Canada’s (OHSTC) decision that Canada Post had not contravened the federal health and safety provisions in the Canada Labour Code, thus rescinding the health and safety officer’s determination of a contravention. The dissent, however, in upholding the health and safety officer’s decision that Canada Post had contravened the Code, did not even refer to Vavilov. Despite the glee with which admin law academics and practitioners anticipated and met Vavilov, where does this actually leave us?

Vavilov, the son of Russian spies who were sent back to Russia, did not know his parents were undercover operatives. (I’m just finishing the last season of The Americans, about Russians spies in the United States who did incredible imitations of being American, all the time living next door to an FBI agent! Who knew we’d see such drama in Canada?)

For Vavilov, the ramifications were significant. He had been born in Canada and applied to renew his passport, but was denied. Eventually, the Registrar of Citizenship stated he fell into an exception for the general rule that anyone born in Canada is a Canadian citizen: a child of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” will not be a citizen if neither parent is a Canadian citizen or permanent resident. Vavilov challenged the Registrar’s decision, which was upheld by the Federal Court. The Federal Court of Appeal held the decision was unreasonable and quashed it. The Supreme Court unanimously held that the decision was unreasonable and found Vavilov to be a Canadian citizen.

The facts of Vavilov make for an exciting case, but its importance lies in the SCC’s efforts to clarify the standard of review in administrative law, an area that has long been rife with confusion (but also I’ve always thought a fun area of law because of that). Vavilov is one of a trilogy that includes cases about whether Canadian broadcasters are able to substitute local ads, as permitted by the CRTC, during the Super Bowl (see Bell Canada v. Canada (Attorney General) and National Football League, et al. v. Attorney General of Canada [released as a single judgement]). Many Canadians wanted to see the American ads, which always have a lot of hype, given the cost and effort put into them by American advertisers. The majority of the SCC, applying Vavilov, held that the CRTC did not have the authority to make this decision and thus Canadian broadcasters could not substitute local ads. Because the CRTC’s governing statute had an appeal provision, the standard they applied was that of appellate review and the standard of review was correctness.

Justices Abella and Karakatsanis, also applying Vavilov, in which they had written joint concurring reasons, dissented in Bell Canada, in part because, in their view, the majority did not take sufficient account of the CRTC’s expertise.

I return briefly to Vavilov before considering Canada Post more fully. Seven justices authored the majority in Vavilov, setting out their objective immediately:

…we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick…: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making. (Vavilov, majority reasons, para. 2)

The SCC had also intended to settle the question of the appropriate standard of review in administrative law a decade earlier in Dunsmuir, which dealt with a grievance under the New Brunswick Public Service Labour Relations Act. However, how well it could do this was perhaps weakened from the beginning by there being three sets of reasons: Bastarache and LeBel JJ. for three other judges (thus a plurality of five), concurring reasons by Deschamps J. for two additional judges and Binnie J.’s single set of concurring reasons. As was later echoed in Vavilov, Bastarache and LeBel JJ. began by confronting the issue head on:

This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question. (Dunsmuir, Bastarache and LeBel JJ., para. 1)

Specifically, the main objective for Bastarache and LeBel JJ. was to reduce the number of standards of review (correctness requiring no deference to the administrative decision-maker, reasonableness and patently unreasonable, requiring the greatest deference), the definitions of the standards and “the analytical process employed to determine which standard applies in a given situation” (Dunsmuir, Bastarache and LeBel JJ., para. 34). Among other problems with the three standards, they noted “the application of the patent unreasonableness standard … at times seems to require parties to accept an unreasonable decision” (Dunsmuir, Bastarache and LeBel JJ., para. 39) and the difficulty in distinguishing in practice between the reasonableness and patently unreasonable standards (Dunsmuir, Bastarache and LeBel JJ., paras. 40ff).

Bastarache and LeBel JJ. explained,

The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily be manipulated, to a highly contextual “functional” test that provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. A simpler test is needed. (Dunsmuir, Bastarache and LeBel JJ., para. 43)

Bastarache and LeBel JJ. concluded that reasonableness and patently unreasonable should be collapsed into a reasonableness standard, which recognized that there might be more than one possible acceptable outcome (Dunsmuir, Bastarache and LeBel JJ., para. 47). Judicial review should acknowledge the expertise of the tribunal and the legislative decision to leave some questions in the hands of the administrative body (Dunsmuir, Bastarache and LeBel JJ., para. 49).

So far, so good. However, what appears to be a relatively simple statement of standards of review quickly becomes more complicated: “questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness.” (Dunsmuir, Bastarache and LeBel JJ., para. 51) Thus, although a privative clause in the operative legislation suggests a reasonableness standard, “[t]his does not mean, however, that the presence of a privative clause is determinative”, since the superior courts retain their constitutional role. (Dunsmuir, Bastarache and LeBel JJ., para. 52)

Bastarache and LeBel JJ. go on to outline the factors that will help to determine the appropriate standard of review under the new regime, which will often rely on the standard of reasonableness as determined in previous cases, summarized as “the contextual approach”. There is no need to consider Dunsmuir further, except to note that Deschamps J. maintained that, rather than focusing on the nature of the judicial review, the courts should focus on the nature of the question forming the basis of the judicial review, that is, whether it is a question of fact, of law or questions of mixed fact and law (Dunsmuir, Deschamps J., paras. 160-161). Binnie J. considered the majority’s analysis to be too narrow; rather, the system more broadly required reassessment.

(For those wanting a fuller reminder of the Dunsmuir analysis, see, for example, a summary by Mitchell Grossell, then a student at Western, here. For a discussion about how Dunsmuir has not achieved its objective of a simpler way of judicial review to which all can agree, see an analysis of Canada (Canadian Human Rights Commission) v. Canada (Attorney General) by Shaun Fluker. And for a critique of Dunsmuir and a cri de coeur for revisiting the standard of review, see Hon. David W Stratas’s contribution to a group of essays Paul Daly organized in May 2018 about the case here.)

Now to jump forward almost a decade to Vavilov and yet another go at providing useful guidance on judicial review. Suffice it to say that the majority in Vavilov consider the approach in or having evolved from Dunsmuir to be “flawed”, justifying a departure from precedent (Vavilov, majority, para. 18). (It is not my intention to analyse Vavilov in detail or completely, merely to identify aspects relevant to the Canada Post review. See a succinct summary of the majority’s reasoning in Vavilov by Rebecca Ross, a student at Osgoode Hall Law School, here.)

The majority in Vavilov acknowledge the crucial importance of administrative decision-making in Canada’s legal order, “one of the principal manifestations of state power in the lives of Canadians” (Vavilov, majority reasons, para. 4). From the outset, when it granted leave to appeal the Federal Court of Appeal’s decision, the Court gave notice that Vavilov and Bell Canada would provide an opportunity once again to bring clarity to the arena of judicial review. It invited the parties to address the issue in their submissions, granted intervener status to 27 organizations “representing the breadth of the Canadian administrative law landscape” (4 interveners were in fact attorneys general) and appointed two amici curiae. The majority identify two issues arising from Dunsmuir, which they acknowledge have not satisfied that decision’s promise of simplifying judicial review: 1) the analysis for determining the standard of review and its straying from the “theoretical foundations” of judicial review and 2) the proper application of the reasonableness standard.

The majority set the parameters of judicial review as based in respect for administrative law regime:

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. (Vavilov, majority reasons, para. 13)

But this is a two-way street, since while the courts should respect administrative decision-making, administrative decision-makers should respect “a culture of justification”. In short, they should write better decisions.

The Court’s new approach can be summarized as follows: there is a presumption of reasonableness in reviewing the merits of a decision by an administrative body, including matters beyond the interpretation of the body’s enabling statute (Vavilov, majority reasons, para. 25), reflecting the legislature’s decision to place the subject matter in the hands of an administrative tribunal rather than the courts. However, it can be rebutted in two instances. The first is when the legislature has prescribed a different standard or has provided for an appeal (rather than judicial review), in which case the standard for appellate review developed in the jurisprudence applies (as in Bell Canada). An appeal provision governs, regardless of expertise, a departure from past jurisprudence (and a serious point of contention with the concurring justices). The second is “where the rule of law requires that the standard of correctness be applied”, that is in relation to constitutional matters, “general questions of law of central importance to the legal system as a whole” and jurisdictional questions between or among administrative bodies. (Vavilov, majority reasons, para. 17) Together, the elements of the approach respects the legislature’s “design choice”.

Given the part the expertise of the administrative body (including its members) has played in assessing the appropriate standard, it is important in understanding the “new” approach that it is no longer necessary to assess the expertise or take it specifically into account in determining the standard (it is “folded into the new starting point”); nevertheless, “expertise remains a relevant consideration in conducting reasonableness review” (Vavilov, majority reasons, para. 31). The question of expertise lies at the heart of the disagreement between the majority and concurring justices.

The majority consider the correctness standard to be appropriate when the question relates to matters that have a broader application. Thus constitutional issues “require a final and determinate answer from the courts”, questions of general application are of “central importance to the legal system as a whole”, that is, questions that have “significant legal consequences for the justice system as a whole or for other institutions of government” (now it will not be necessary to consider the administrative body’s expertise in deciding whether the correctness standard applies in these situations) and cases in which one administrative decision-maker has made a decision challenged on the basis that it is in an area lying within the jurisdiction of another administrative body. (See Vavilov, majority reasons, paras. 55-64 for greater detail.) The list is not exhaustive, but the majority warn any additional categories would be “exceptional” (Vavilov, majority reasons, para. 70).

The consideration of the third ground of jurisdictional boundaries is somewhat confusing. Although the majority lists jurisdictional boundaries as one of the three matters for which the rule of law requires the correctness standard at para. 69, it also states at para. 65 that this matter does not require a separate category. The reasonableness standard is sufficiently “robust” to include an assessment of whether administrative bodies “have acted within the scope of their lawful authority without having to conduct a preliminary assessment regarding whether a particular interpretation raises a ‘truly’ or ‘narrowly’ jurisdictional issue and without having to apply the correctness standard” (Vavilov, majority reasons, para. 67). Like expertise, jurisdiction in this sense, at least, appears to be swallowed by reasonableness, yet it may still be subject to correctness. If not, the potential for one administrative body to usurp the jurisdiction of another may be one of the victims of the new standard.

Despite the variety of administrative bodies, reasonableness is a “single standard”; however, “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case” (Vavilov, majority reasons, para. 89). While reasons may reflect a variety of factors, and can be considered in the context of factors outside the four corners of the decision, and should not be held to a standard of “perfection” or necessarily “look like” judicial reasons, they must conform to the expectation that “the exercise of public power must be justified, intelligible and transparent” (Vavilov, majority reasons, para. 95). The party challenging the decision must show that the decision does not satisfy that requirement and is unreasonable (Vavilov, majority reasons, para. 100). The majority explore the relevant factors in determining whether reasons, when provided, and thus the decision, are reasonable (Vavilov, majority reasons, paras. 91-135). Where there are no reasons (legitimately because of the nature of the administrative body), the court must look further afield (Vavilov, majority reasons, paras. 136-138)

The concurring reasons in Vavilov (concurring in result, but definitely not in approach) maintain that the majority did not respect the prior jurisprudence on judicial review and, instead, “dramatically reverse[d] course”, showing no “fidelity” to the respect that should be shown to administrative bodies:

Forty years ago, in C.U.P.E., Local 963 v. New Brunswick Liquor Corporation … this Court embarked on a course to recognize the unique and valuable role of administrative decision-makers within the Canadian legal order. Breaking away from the court-centric theories of years past, the Court encouraged judges to show deference when specialized administrative decision-makers provided reasonable answers to legal questions within their mandates. Building on this more mature understanding of administrative law, subsequent decisions of this Court sought to operationalize deference and explain its relationship to core democratic principles. These appeals offered a platform to clarify and refine our administrative law jurisprudence, while remaining faithful to the deferential path it has travelled for four decades. (Vavilov, concurring reasons, para. 198)

The concurring justices’ strong words reflect the view that the majority has failed to recognize administrative bodies’ expertise in deciding legal questions. At the same time, they agree with “the majority’s decision to eliminate the vexing contextual factors analysis from the standard of review framework and to abolish the shibboleth category of ‘true questions of jurisdiction'” (Vavilov, concurring reasons, para. 200). However, how one approaches review of administrative decisions, seen in the standard of review debate, reflects “two distinct philosophies of administrative law” (Vavilov, concurring reasons, para. 205). In particular, the concurring justices, in reviewing the judicial review jurisprudence, downplay the role of a statutory appeal provison, stating that it does not displace the significance of expertise (Vavilov, concurring reasons, paras. 210ff), concluding,

In sum, for four decades, our standard of review jurisprudence has been clear and unwavering about the foundational role of specialized expertise and the limited role of statutory rights of appeal. Where confusion persists, it concerns the relevance of the contextual factors in Dunsmuir, the meaning of “true questions of jurisdiction” and how best to conduct reasonableness review. That was the backdrop against which these appeals were heard and argued. But rather than ushering in a simplified next act, these appeals have been used to rewrite the whole script, reassigning to the courts the starring role Dicey ordained a century ago. (Vavilov, concurring reasons, para. 229)

For various reasons, the concurring justices are critical of the majority’s decision to develop a new approach, apart from their view that it is wrong. In particular, they believe it will result in “a stampede” of litigation because of the number of administrative bodies, including some highly specialized ones, subject to appeal (Vavilov, concurring reasons, para. 251) and it does not respect the importance of precedent with negative effects (for example, “every existing interpretation of such statutes by an administrative body that has been affirmed under a reasonableness standard of review will be open to fresh challenge” [Vavilov, concurring reasons, para. 269]).

The concurring justices propose their own more incremental approach:

We support a standard of review framework with a meaningful rule of deference, based on both the legislative choice to delegate decision-making authority to an administrative actor and on the specialized expertise that these decision-makers possess and develop in applying their mandates. Outside of the three remaining correctness categories from Dunsmuir — and absent clear and explicit legislative direction on the standard of review — administrative decisions should be reviewed for reasonableness. Like the majority, we support eliminating the category of “true questions of jurisdiction” and foreclosing the use of the contextual factors identified in Dunsmuir. These developments introduce incremental changes to our judicial review framework, while respecting its underlying principles and placing the ball in the legislatures’ court to modify the standards of review if they wish. (Vavilv, concurring reasons, para. 282)

They also express concern the majority’s approach to determining reasonableness will result in a checklist approach by a reviewing court. They provide their own process, summed up as follows, but which in broad outline is similar to that of the majority:

reasonableness review is based on deference to administrative decision-makers and to the legislative intention to confide in them a mandate. Deference must inform the attitude of a reviewing court and the nature of its analysis: the court does not ask how it would have resolved the issue before the administrative decision-maker but instead evaluates whether the decision-maker acted reasonably. The reviewing court starts with the reasons offered for the administrative decision, read in light of the surrounding context and based on the grounds advanced to challenge the reasonableness of the decision. The reviewing court must remain focussed on the reasonableness of the decision viewed as a whole, in light of the record, and with attention to the materiality of any alleged errors to the decision-maker’s reasoning process. By properly conducting reasonableness review, judges provide careful and meaningful oversight of the administrative justice system while respecting its legitimacy and the perspectives of its front-line, specialized decision-makers. (Vavilov, concurring reasons, para. 313)

Regardless of the concurring justices’ sense of two different philosophical approaches to judicial review, both the majority and they find that the Registrar of Citizenship’s decision was unreasonable.

(For brief assessments of Vavilov, see Gerard Kennedy, “20 Things to Be Grateful For as Administrative Law Enters the 2020s” and Paul Daly, “A Consensus, If You Can Keep It: Canada (Minister of Citizenship and Immigration) v. Vavilov” and “Roadtesting the Vavilov Framework: Bell Canada v. Canada (Attorney General), 2019 SCC 66 and Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67“.)

Now to Canada Post. A reminder first that Wagner C.J. and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. comprised the majority in Vavilov, with all the justices putting their name to the judgement, while Abella and Karakatsanis JJ. wrote concurring reasons. In Canada Post, Wagner C.J. and Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ. constituted the majority, with Rowe J. delivering the judgement; Abella and Martin JJ. dissented, with Abella J. writing their reasons.

The Local Joint Health and Safety Committee in Burlington had been prevented from inspecting local mail routes for hazards and this had led to the complaint that Canada Post had contravened the health and safety provisions of the Canada Labour Code, despite the fact the mail carriers spent the great majority of their time outside the building (Canada Post, Abella J., para. 69).

The OHSTC held that Canada Post had not contravened the Canada Labour Code when it restricted its inspection of the workplace to the Burlington Depot where the postal workers were located. An Appeals Officer of the Tribunal had rescinded a health and safety officer’s direction that the employer was required to inspect the routes followed by the letter carriers and locations where mail is delivered. The Canadian Union of Postal Workers (CUPW) sought judicial review, which was dismissed by the Federal Court, but the Federal Court of Appeal upheld the inspector’s direction that Canada Post had contravened the health and safety provisions. The majority upheld the Appeal Officer’s decision. The dissent would have reinstated the health and safety officer’s order.

Section 124 of the Canada Labour Code provides, “Every employer shall ensure that the health and safety at work of every person employed by the employer is protected” and more specifically, section 125(1)(z.12) of states,

125(1)…[E]very employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

(z.12) 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.

Under section 135 of the Code, Canada Post was required to establish a joint health and safety committee which, under section 137(7)(k), “shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year”. “Work place” is defined under section 122(1) as “any place where an employee is engaged in work for the employee’s employer”. The Appeals Officer interpreted the term broadly to include areas over which the employer did not have control and therefore the work place would include the routes and delivery locations. However, he interpreted section 125(1) to apply “when the employer controls both the work place and the activity; and when the employer controls the activity, but not the work place” (Canada Post, Rowe J., para. 17) and “a close reading of the obligations created by s. 125(1) reveals that some obligations apply to both situations while others can only apply where the employer has control over the work place” because the employer must be able to fix or have fixed any hazards found during the inspection (Canada Post, Rowe J., paras. 18-19). Furthermore, the Workplace Hazards Prevention Program, developed by Canada Post and CUPW, provided for identifying and addressing hazards encountered by letter carriers.

Both the Federal Court and the Federal Court of Appeal followed Dunsmuir, but since they applied a reasonableness standard, Rowe J. concluded there was no unfairness in the SCC’s applying Vavilov. (This might be the case here, but it would depend on which factors in the analysis were relevant and which aspects of the Dunsmuir standard had been changed by Vavilov.) The Federal Court upheld the Appeal Officer’s decision, but Nadon J. of the Federal Court of Appeal reinstated the health and safety officer’s direction, finding the Appeal Officer’s decision was unreasonable because he had redrafted the relevant provision and that hazards outside the Burlington Depot in Ontario (that is, along the routes and at the delivery points) could be dealt with by Canada Post through various health and safety programs; a concurring judge reached his opinion on slightly different grounds. The dissenting judge held that it was not reasonable to interpret the obligation to apply to the routes and delivery locations because the employer could not necessary fix any hazards discovered.

Justice Rowe explains the appeal

provides an opportunity to apply the framework for judicial review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov…. The standard of review is reasonableness. This Court’s role is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints. (Canada Post, majority, para. 2; citation omitted)

The Appeal Officer interpreted the Code to require Canada Post to inspect only those areas over which it had control; it did not control the routes or the delivery locations. The SCC, on Vavilov, had to determine whether this decision was reasonable.

Justice Rowe explains that neither of the exceptions to the reasonableness standard, the legislation’s prescribing a standard of review or an appeal provision or where the rule of law requires a correctness standard applied. Happily for Vavilov‘s maiden run employing the (almost) all-encompassing reasonableness standard, Canada Post turned out to be an easy decision to assess, for “[t]he administrative decision maker’s reasons in this case were exemplary” (Canada Post, Rowe J., para. 30). (Had they not been, though, it would have required the Court to sift through the reasons to see where they met the standard of providing “a transparent and intelligible justification”; where they did not, the court would have to determine whether they were adequate, whether the “decision [as a whole] conforms to the relevant legal and factual constraints that bear on the decision maker and the issue at hand”.)

Justice Rowe then reviews the decision for internal coherence and for “the justification of the decision in light of the relevant facts and law”. He hastens to add neither the structure nor this particular order is required: this is not a checklist (Abella and Karakatsanis JJ. had warned in their concurring reasons in Vavilov that the factors set out by the majority in that case could easily become a “checklist” ).

The Appeal Officer’s decision was internally coherent. Justice Rowe rejects CUPW’s argument that Canada Post’s health and safety practices showed it could investigate for hazards along the routes and at the delivery locations and therefore the conclusion the employer could not satisfy the Code’s requirements where Canada Post did not have control was unreasonable. However, Rowe J. explains,

Canada Post’s discretionary policies (pursued in furtherance of its responsibilities under the Code) take into account practical considerations regarding the work of letter carriers. The duty under para. (z.12) is mandatory; if applicable, Canada Post would have been obligated to ensure that every part of the work place was inspected annually, regardless of any impracticalities arising from the nature of the work of its employees. (Canada Post, Rowe J., para. 37)

With respect to the second “lens”, the justification of the decision taking into account the relevant facts and law, Justice Rowe views the majority in the Federal Court of Appeal as conducting a de novo interpretation of section 125(1)(z.12), developing their own interpretation and thereby failing to exhibit deference to the Appeal Officer’s decision: “Taking a ‘reasons first’ approach rather requires the reviewing court to start with how the decision maker arrived at their interpretation, and determine whether it was defensible in light of the interpretative constraints imposed by law.” (Canada Post, Rowe J., para. 41) The Appeals Officer met the required standard, considering “the text, context, purpose, as well as the practical implications of his interpretation” (Canada Post, Rowe J., para. 43).

Justice Rowe assesses the Appeal Officer’s decision in some detail. I refer only to some portions of that analysis. Section 125(1) reads as follows: “every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity” satisfy the listed obligations, including that under section 125(1)(z.12). The Appeal Officer read the “and” in section 125(1) disjunctively. CUPW argued that it should be read conjunctively, but Rowe J. states “and” can be read either way and therefore the wording does not preclude the Appeal Officer’s interpretation. (I merely note here that Rowe J. gives short shrift to the opening words of section 125(1) [“Without restricting the generality of section 124”, which in turn reads “Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.”).

The Appeals Officer also considered other provisions, as aids to his interpretation of section 125(1)(z.12). He took a broad view of the provisions, recognizing that they applied to different workplaces and that while employers were required to meet the obligations to the greatest extent possible, they might not be able to meet all the obligations as listed; there may be other ways to satisfy them. This recognizes the wide variety of workplaces to which the Code applies. He also considered the submissions of the parties, including relevant evidence, as required; where this is the case, the reviewing court should not reassess the evidence. Here “[t]here is no indication that he failed to consider the evidence presented at the hearing, or that he based his decision on a misapprehension of the evidence, thereby rendering his decision unreasonable.” (Canada Post, Rowe J., para. 63)

Justice Rowe notes, “Decision makers, simply by reciting evidence and submissions made to them, do not thereby immunize their reasons from challenge on the basis that they have failed to have regard to something that is relevant and significant. Recitation is not justification….” (Canada Post, Rowe J., para. 63) (In my view, while this may be obvious and often said, it is one of the more important statements in Canada Post; there are administrative decision-makers who will, after all, have to read Vavilov to ensure their decisions meet the new standards of review, who would do well to pay attention to this caution.)

Justice Rowe concludes as follows:

[65] Before the Appeals Officer, it was undisputed that Canada Post does not have physical control over individual points of call or lines of route, and that many of the points of call are private property. The Appeals Officer further found that Canada Post cannot alter nor fix the locations in the event of a hazard. The Appeals Officer applied his interpretation of the provision to these facts and 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. [Therefore,] subsection 125(1)(z.12) does not apply to any place where a letter carrier is engaged in work outside of the physical building [in] Burlington” ….

[66] The Appeals Officer’s conclusions followed from a clear line of reasoning. With due regard to the submissions before him, he interpreted s. 125(1)(z.12) using well‑established principles of statutory interpretation. The interpretation he arrived at is harmonious with the text, context and purpose of the provision and aligns with past decisions of the OHSTC . He applied his interpretation to the facts of the case and justified his conclusion.

Everyone agreed on the the standard of review, perhaps obviating the need for Abella J. to consider Vavilov explicitly. Unlike Rowe J., however, Abella J. appears to begin not with the Appeal Officer’s reasons, but with interpreting the relevant Code provisions, contradicting her own admonition at para. 313 of Vavilov (see above). She refers to the Appeals Officer’s reasons as they apply to her interpretation, and places the provisions in historical context. In Abella J.’s assessment, the Appeals Officer failed to consider important elements involved in meeting the purpose of the provisions and ways in which Canada Post, which exercises considerable control over mail carriers, could satisfy the requirements even though it did not control the routes and delivery locations. It could tell the carriers not to follow parts of routes that are hazardous until the hazards are fixed, for example: “Just because inspections may be difficult does not mean that they do not have to be done at all, and just because hazards cannot be fixed entirely does not mean that nothing can be done to address them.” (Canada Post, Abella J., para. 99)

The real question is whether Abella and Martin JJ. would have reached the same decision had they traversed the Vavilov path of tracking the Appeals Officer reasons and had they begun by showing deference to his reasons. Doing so would not have precluded their finding that he had not considered a more flexible interpretation of the statutory obligations, in keeping, one might argue, as did Abella J., with principles of statutory interpretation.

I note just one example of how differently Rowe J. and Abella J. address an omission from the Appeal Officer’s reasons. Justice Abella believes the Appeal Officer’s failure to consider section 135 of the Code (providing for the role of the workplace committees, which given their members’ familiarity with the workplace, are capable of finding practical solutions) to be a flaw contributing to the conclusion that his decision was unreasonable. In contrast, Rowe J. sees section 135 quite differently: “not only does s. 135(1) not cause me to lose confidence in the outcome reached, this provision provides, if anything, only additional support for the Appeal Officer’s interpretation of s. 125(1)(z.12). The possibility that the justification provided might have been strengthened by reference to s. 135(1) does not affect the reasonableness of his decision.” (Canada Post, Rowe J., para. 53). (It should be noted, however, that an intervener raised this argument at the Federal Court of Appeal for the first time.) Yet, once one starts with the decision and the presumption of reasonableness, it is easier to dismiss omissions from the administrative decision-maker’s reasons. Only those lacking in substance are likely not to survive review, those that are, in fact, best described as careless, sloppy or perfunctory.

The biggest lesson in the majority’s decision in Vavilov is the emphasis on appreciation for the significant role of administrative bodies in the Canadian legal landscape and the need to create a balanced relationship between administrative bodies and the courts in their oversight role. Despite the effort to simplify, however, it will not be surprising if the concept of expertise rears its head again, and perhaps properly so, since the reasonableness of a decision will be informed by an expertise that courts may not have. It will also not be surprising if a simpler judicial review process is eventually complicated by the exceptions to the reasonableness standard, since these are not necessarily the clean-cut categories the majority outlines. Finally, it is possible that the majority’s lengthy analysis will simply dissolve into the approach Abella J. more or less takes in Canada Post, implicitly asking the question: what is the right interpretation? and does the administrative decision satisfy it?

And one final question: does the Rowe J.’s decision or Abella J.’s opinion best reflect and support the purpose of the health and safety provisions in the Canada Labour Code? And is that even really relevant beyond traditional calls for a purposive statutory interpretation?

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