In the first publish-Vavilov judicial review decision, the final Court of Canada has divided 7-2 to reinstate as “reasonable” the choice of the appeals officer using the Work-related Safety and health Tribunal Canada (OHSTC) who determined that Canada Publish didn’t breach its workplace safety obligations by not inspecting for safety its postal carriers’ delivery routes and drop-off locations.
On 12, 20, Justice Malcolm Rowe permitted the benefit of Canada Publish and restored the 2014 order of OHSTC appeals officer Michael Wiwchar which rescinded a safety and health officer’s determination the appellant employer is in contravention of s. 125(1) (z. 12) from the Canada Work Code (CLC) – which supplies the employer needs to ensure that each area of the workplace is inspected for safety hazards at least one time annually: Canada Publish Corp. v. Canadian Union of Postal Workers 2019 SCC 67.
Justice Rowe’s decision, released eventually following the top court handed lower its administrative law blockbuster, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, marks the final Court’s first publish-Vavilov use of its revised standard of review framework and illustrates the way a court can conduct a reasonableness review used.
Paul Daly, College of Ottawa
College of Ottawa law professor Paul Daly, a specialist on administrative law, told The Lawyer’s Daily the court’s use of the brand new framework represents “a solid start.”
Daly stated Justice Rowe performed an appropriately deferential review, beginning from detailed reasons supplied by the appeals officer “and demonstrating these were justified, transparent and intelligible.” However, in which the administrative decision provides no reasons or sparse reasons, the exercise will be more difficult,” Daly remarked.
“This [decision] should accordingly be seen as an excellent start, but poor a situation that was well-adapted towards the Vavilov framework. Other cases will place the court’s hard-won consensus [in Vavilov] under greater pressure.”
The appeals officer below determined the workplace inspection obligation under s. 125(1) from the CLC applied simply to the various components from the workplace that the business had control (within the particular situation prior to the appeals officer, Canada Publish depot in Burlington, Ont.) which this didn’t include postal carriers’ routes and points of call: 2014 OHSTC 22.
Justice Malcolm Rowe
The applying for a judicial overview of his decision through the respondent union, CUPW, was ignored through the Federal Court but was permitted 2-1 through the Federal Court of Appeal, with Justice David Near dissenting.
Applying a typical of reasonableness (which standard seemed to be agreed by the parties), Justice Rowe held for that Supreme Court’s majority the decision from the appeals officer, that was bolstered by cogent and “exemplary” reasons, took its origin from an internally coherent chain of reasoning and it is justified considering the appropriate legal and factual constraints.
“Applying the framework put down in Vavilov for figuring out the relevant standard of review and performing reasonableness review, the appeals officer’s decision concluding the obligation to examine work in s. 125(1) (z.12) from the Code is one that will only affect a company that has control of the physical workplace was reasonable,” Justice Rowe held, affirming Justice Near’s conclusion below.
“The appeals officer’s analysis adopted a rational and logical type of reasoning and the decision was defensible considering the appropriate legal and factual constraints,” Justice Rowe described. “He employed well-established concepts of statutory interpretation, engaged using the submissions and evidence before him, and came on his understanding from the field when thinking about the sensible implications of his interpretation. The interpretation he showed up at is harmonious using the text, context, and reason for the supply and aligns with past decisions from the Work-related Safety and health Tribunal Canada.”
Justice Rosalie Silberman Abella
Inside a dissent endorsed by Justice Sheilah Martin, Justice Rosalie Silberman Abella contended the conclusion from the appeals officer the employer’s statutory safety inspection obligation was restricted to workplaces within Canada Post’s physical control was not reasonable and sporadic using the purpose and text from the CLC’s safety inspection provision.
“Safety inspections were the main methodology through which Parliament meant to broaden preventive safety and health protections for workers,” Justice Abella reasoned. “They exist to proactively identify hazards before personnel is uncovered for them, and be sure that they’ll be either fixed or prevented. It can make little sense that Parliament, getting specifically selected under s. 125(1) to increase safety protections to activities in workplaces outdoors an employer’s control, might have intended that the core part of individuals protections – the security inspection duty – be exempt from that extension,” she authored. “The preventive reason for the inspection obligation further reinforces that it hadn’t been designed to apply simply to workplaces under an employer’s physical control.”
Counsel for CUPW, Paul Cavalluzzo of Toronto’s Cavalluzzo LLP, stated that, in the view, most “failed to understand the essential preventative purposes” underlying the CLC.
“The duty to examine would be a crucial obligation enforced through the amendments towards the Code in 1995,” he told The Lawyer’s Daily. “The whole idea of the duty would be to prevent accidents before they occur. A checkmark is really a preventative measure that avoids accidents, once we saw in Walkerton. Furthermore, Parliament in the knowledge made the decision the duty ought to be some pot responsibility to ensure that front-line workers possess a ‘say’ with what preventative measures ought to be taken. To point out this duty doesn’t apply in which the employer doesn’t control work would be to exclude a large number of federal workers in the protection of the fundamental to safety and health when their jobs remove them from the employers ‘physical plant.’ ”
Commenting on the grade of review analysis, he noted that “although the grade of review test might have been clarified [in Vavilov], what this situation signifies would be that the fighting ground can become what’s reasonable within the conditions. Within this situation, the dissent found the tribunal’s reasoning tactic to be ‘deeply flawed’. Most thought it was done ‘not display by any means a fatal flaw in rationality or logic.’ This is extremely troubling for somebody who practices administrative law,” Cavalluzzo recommended. “In light of those opposite conclusions on which is affordable, one wonders if the issue in the past was the grade of review. In our opinion, the tribunal read words from the statute as discovered by the dissent and also the Federal Court of Appeal [majority], and unsuccessful to own legislation an extensive and generous interpretation as needed by Parliament. … Although judicial deference is a great policy, tribunals who neglect to advance the objectives underlying their constituent statute are worthy of no such deference.”
Counsel for Canada Publish, John Terry of Torys LLP in Toronto, couldn’t immediately provide comment.
Toronto’s John Bartolomeo, co-counsel for that intervener Workers’ Safety and Health Legal Clinic that was promoting with respect to non-unionized employees in smaller sized workplaces, told The Lawyer’s Daily he authored immediately towards the federal minister of Work following the discharge of the final Court’s decision. He requested the federal government to amend the CLC to specifically reflect Justice Abella’s interpretation of the employer’s workplace safety inspection obligation.
“A non-unionized worker in a tiny setting doesn’t have a similar guarantee [as unionized workers in large workplaces] therefore the only option they’ve are what protections are based in the CLC,” Bartolomeo described. “If we would like workplace safety to become aware of everywhere a worker goes, then your best factor to complete is always to amend the CLC to really make it obvious.”
One administrative law takeaway Bartolomeo sees within the ruling is the fact that what’s considered to become reasonable varies using the decider. “The majority [from the court] was from the view the appeals officer’s decision was reasonable, and also the dissent could be that the decision wasn’t reasonable,” he noted. “And in the finish during the day, however many different ways you want to say the grade of reasonableness is exactly what applies, it’s still likely to be within the eye from the beholder in regards to what is, or perhaps is not reasonable within the conditions. That’s what it’s usually likely to be,” regardless of the number of Top Court rulings we obtain, he stated.