By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.
In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”), the Supreme Court of Canada (“Court”) limited federally regulated employers’ duty to conduct safety inspections. Namely, the Court found that such employers only had a duty to inspect in workplaces over which they exercise control. Canada Post was an application of judicial review of a decision by the Occupational Health and Safety Tribunal of Canada (“OHSTC”). The rule-at-issue was Canada Labour Code, RSC 1985, c L-2, Part II, s 125(1)(z. 12) (“CLC”), which states that “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 workplace that is not controlled by the employer, to the extent that the employer controls the activity” “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[.]”
A. Facts and History
The respondent, Canadian Union of Postal Workers (“Union”), represents employees of the appellant, Canada Post Corporation (“Post”). Following a complaint by a member of the joint health and safety committee (“JHSC”) and following an investigation, a Health and Safety Officer (“Officer”) found Post contravened the CLC because of its JHSC’s failure to inspect certain parts of the workplace. Namely, the officer held that the workplace safety inspections performed by the joint health and safety committee “should include letter carrier routes and locations where mail is delivered (“points of call”), and not just the Burlington Depot building (at para 4).”
Post appealed the Officer’s decision to the OHSTC, who rescinded the Officer’s decision because inspections “applied only to the parts of the workplace over which the employer had control; this did not include letter carrier routes and points of call (at para 15).” The Union applied for judicial review of the OHSTC’s decision to the Federal Court (“FC”), who dismissed the application after applying the standard of reasonableness. That is, the FC held that the OHSTC’s decision was “within the range of reasonable outcomes” because there were “no internal inconsistencies in the reasons” and “the outcome was consistent with the purpose of the scheme[.] (at para 20)”
The Federal Court of Appeal (“FCA”) set aside the FC’s decision that the OHSTC’s decision was reasonable, reinstating the Officer’s decision that Post had violated the CLC. At para 48, the FCA stated “the employer must fulfil every obligation enumerated by the provision if it controls either the workplace or the work activity” and thus accordingly the OHSTC’s decision would amount to “a redrafting of the provision.”
The case was appealed all the way to the Supreme Court of Canada.
Was the OHSTC’s decision that Post’s duty to inspect only applied to the Burlington Depot building and not to points of call was reasonable?
It is crucial to note that Canada Post was the Court’s first application of judicial review after the ground-shaking case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”), which ruled on an extremely contentious point of administrative law. Namely, the Court in Vavilov held that the standard of review in applications of judicial review, except in “two types of situations (at para 27),” was whether or not the decision reviewed was reasonable. A reasonable decision, according to Vavilov, is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the fact and law that constrain the decision maker (at para 85).” Determining whether a decision was reasonable is not the same as determining whether the decision was correct. It is not the job of a court, when considering reasonableness, to “ask itself what the correct decision would have been (Law Society of New Brunswick v Ryan, 2003 SCC 20)”.
In order for a decision to be overturned on the standard of reasonableness, “[t]he burden is on the party challenging the decision to show that it is unreasonable,” showing “that any shortcomings or flaws relied on … are sufficiently central or significant to render the decision unreasonable (at para 100).” The burden in Canada Post lied with the Union, who challenged the reasonableness of the decision of the OHSTC.
The reasonableness standard was analyzed by the Court in two parts: firstly, whether the OHSTC’s decision was “based on an internally coherent and rational chain of analysis” and, secondly, whether the decision was “justified in relation to the fact and law that constrain the decision maker (at para 85).”
Chain of Analysis
The Court found that the OHSTC’s analysis “employed well-established principles of statutory interpretation, engaged with the submissions and evidence before him, and drew on his knowledge of the field (at para 35).” Justice Rowe, writing for the Majority, stated that the OHSTC’s reasoning demonstrated an “in-depth understanding of the ways in which Canada Post fulfils the purposes of the [CLC], bearing in mind the practical limitations of a work place spanning 72 million kilometres of postal routes (at para 38).” Rowe J continued, stating “Canada Post’s ability to carry out some route audits does not imply that it has the capacity to inspect all routes in a year (at para 38).”
Fact and Law
Vavilov, at para 127, states that an administrative decision-maker’s reasons must “meaningfully account for the central issues and concerns raised by the parties.” Rowe J determined that the OHSTC had done so, stating that the reasons “responded to the issue before [it], and took into account the detailed submissions of both parties (at para 63).”
The question before a court in conducting a reasonableness analysis of the legal analysis of an administrative decision-maker is whether that decision-maker’s interpretation of the relevant statute(s) was reasonable. In Canada Post, the Court analyzed the OHSTC’s analysis of section 125(1)(z.12) of the CLC with regards to the text, context, and purpose of that provision. The Court’s textual analysis concerned the meaning of text such as “work place” and the word “and” itself as well as the specific obligations of an employer under (z. 12).
The Court’s contextual analysis considered the fact that the OHSTC’s analysis did not refer to section 135(1), which had been contested by the parties at the FCA. The Court held that decision-makers, in accordance with Vavilov at para 122, “are not required … to consider every aspect of the statutory context that might bear on their decision.” The question for the Court was thus whether the OHSTC’s analysis was reasonable despite the fact that it did not consider section 135(1). On this issue, the Court ruled that the omitted section did not “cause me to lose confidence in the outcome reached” but, in fact, provided “additional support for the [OHSTC’s] interpretation of s. 125(1)(z.12) (at para 53).”
The Court’s purposive analysis considered the purpose of Part II of the CLC by reference to section 122.1, determining that “a reasonable interpretation of any provision under Part II should be informed by the overarching objective of Part II of the [CLC] (at para 54).” The Court stated that the objective of Part II of the CLC was found in section 122.1, which states that “[t]he 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.” The Court found that the OHSTC’s analysis was “[i]n accordance with the statutory purpose of Part II (at para 56),” stating that “[a]n interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of preventing accidents and injury (at para 59).” The Court stated that the duty to inspect the work place “cannot be fulfilled by an employer that does not control the work place” and that “[a] different interpretation of the statute would not change that reality (at para 59).” In conclusion, the Court held that “the [OHSTC’s] interpretation did not frustrate the statutory purpose set out in s. 122.1 of the [CLC] so as to render his decision unreasonable (at para 59).”
D. Conclusion and Takeaways
The Court concluded its analysis by determining that the OHSTC’s analysis was reasonable and that accordingly allowed Post’s appeal, overturning the FCA’s decision and upholding the OHSTC’s original decision. There are two very different takeaways from Canada Post.
Firstly, the Court’s detailed analysis of the OHSTC’s decision resulted in an employer-friendly decision. Namely, the rule resulting from Canada Post is that employers do not have a duty to inspect spaces over which it does not exercise control. For Post, this means that it does not have to conduct a yearly inspection of the “72 million kilometres of postal routes (at para 38)” through which its employees perform their duties.
Secondly, the history and the ultimate decision in Canada Post show that the standard of review in administrative law is a highly contested area of law. It is worth noting that the dissent in Canada Post, although it is not law, reached the exact opposite conclusion, Justice Abella stating that the OHSTC’s decision was “unreasonable and inconsistent with the purpose and text of the safety inspection provision (at para 73)” of the CLC. In that sense, while seven Justices on the Court found that a decision-maker’s decision was reasonable, two did not. Accordingly, Canada Post’s employer-friendly limitation should be taken with a grain of salt. While the Court did, in this case, limit the concept of an employer’s work place, a federally regulated employer should expect that any legal action related to this topic specifically and to judicial review of any administrative decision-maker has the possibility of being passionately contested and ultimately may come down to what is reasonable in the eyes of any specific adjudicator or adjudicative body.