Federal Court Decisions

 

 

 

 

Date: 20061106

Docket: T-2304-05

Citation: 2006 FC 1332

Ottawa, Ontario, November 6, 2006

PRESENT:     The Honourable Mr. Justice Beaudry

 

 

BETWEEN:

CANADIAN PACIFIC RAILWAY COMPANY

Applicant

and

 

ALLAN WOOLLARD

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This application is for judicial review pursuant to section 18 of the Federal Courts Act, R.S.C. 1985, c F-7 (the Act) of a decision by Appeals Officer, Douglas Malanka, of the Canada Appeals Office on Occupational Health and Safety. Dated November 30, 2005, the decision varies the direction issued by Health and Safety Officer (H.S.O.), Rod Noel, by finding that the Applicant contravened paragraph 125.1(i) [should be 125(1)(i)] of the Canada Labour Code, Part II, R.S., 1985, c. L-2 (the Code), and paragraph 9.44(1)(b), as well as subsections 9.44(2) and (3), and section 10.4 of the Canada Occupational Health and Safety Regulations, SOR/86-304 (the Regulations).

 

ISSUES

[2]               The parties raise several issues.  While I have taken each under careful consideration, I formulate the issues as follows:

1)      Did the Appeals Officer err in law with respect to his statutory interpretation of the provisions of paragraph 9.44(1)(b) of the Regulations?

2)      Were the Appeals Officer’s findings made in a perverse or capricious manner without regard to the evidence?

3)      Did the Appeals Officer breach the rules of natural justice or procedural fairness by failing to give the Applicant an opportunity to make submissions and be heard on the concerns regarding the hazard investigation as stipulated in section 10.4 of the Regulations?

 

[3]               For the following reasons, the present application shall be allowed.

 

BACKGROUND

[4]               The Applicant provides freight transportation services throughout Canada and in the United States. As part of its operations, the Applicant employs a number of people, including machine operators on the surfacing crews who like the Respondent work outdoors, maintaining its railway tracks. Members of the surfacing crews operate various diesel-powered machines and are responsible for operating, refuelling and maintaining the machines. 

 

[5]               In carrying out these duties, it is not uncommon for such employees to come into contact with animal carcasses and human waste along the railway tracks. But even more significantly, the workers’ clothes regularly get wet and contaminated by hazardous substances, including diesel fuel, lubricating grease, ethylene glycol antifreeze and hydraulic oils.  The material safety data sheets (MSDS) on these products indicate the following:

1.      Diesel Fuel

·        Avoid prolonged or repeated skin contact … ;

·        Remove contaminated clothing – launder before reuse;

·        Do not breathe gas, vapour, spray;

·        Practice good personal hygiene;

·        Launder work clothes frequently;

2.      Hydraulic Oil (Hydrex XV)

·        Avoid inhalation and skin contact;

·        Launder work clothes frequently

3.      Antifreeze (ethylene glycol)

·        Contact can cause slight irritation of skin, eyes and respiratory track;

·        Remove contaminated clothing – launder before reuse

4.      Lubricating Oil (Ardee 32)

·        Similar to above

5.      Lubricating Grease

·        Similar to above

 

[6]                Both parties acknowledge that the Applicant provides the surface crews with various types of disposable coveralls to protect their clothing.  However, it is alleged by the Respondent that these protective gear have been less than adequate, in that they are usually ill fitted, tear easily and until recently, are rarely oil resistant. 

 

[7]               It is acknowledged that the Applicant provided its surfacing crews with a separate room for changing and storing such soiled work clothing. However, when the surfacing crews work in small numbers in remote regions and are billeted in hotels and/or motels, the Applicant no longer provides a separate room for storing their soiled and contaminated work clothing. Yet their work and its associated hazards remain the same. 

 

[8]               As a result, such crews are systematically required to leave the work site without changing out of their work clothes. They have no option but to return to their hotel rooms where they change, shower, dry and store their wet and contaminated clothing in the same rooms in which they must sleep, at times with two workers per room; for periods ranging from one day to a week or more.

 

[9]               That is why on November 21, 2002, the Respondent complained to the H.S.O. that the Applicant was no longer providing a separate room for surfacing crews billeted in hotels and/or motels. The Respondent believed this to be a health hazard in that the odours from his wet or contaminated work clothes filled the room and made him ill at night, especially when the clothing had to be dried on the heater in the hotel or motel room. Moreover, it is also noted that while the Applicant provides surfacing crew workers with an allowance for laundry services, the hotels and/motels do not allow the workers to use their facilities to launder these working clothes.

 

[10]           Following an investigation on April 9 and 16, 2003, the H.S.O. concluded in a direction dated June 12, 2003, that the Applicant had contravened the following provisions of the Code and the Regulations:

1)      Canada Labour Code, Part II paragraph 125.1(1)(e) [should be 125.1(e)] and Canada Occupational Health and Safety Regulations paragraph 10.28(b) and subsection 10.34(1).

 

The employer has failed to make material safety data sheets readily available to employees who operate and maintain maintenance of way track clearing equipment.  Some of the hazardous substances and/or controlled products that these employees handle or are exposed to are diesel fuel, ethylene glycol antifreeze, and hydraulic oils.

 

2)      Canada Labour Code, Part II paragraph 125(1)(i) and Canada Occupational Health and Safety Regulations sub-sections 9.44(1) and (3).

 

Employees who work on and maintain maintenance of way track clearing equipment are regularly required to work outside in inclement weather where clothing becomes wet.  During the operation and maintenance of equipment clothing is frequently contaminated by hazardous products such as diesel fuel, lubricating grease, antifreeze and hydraulic oils.  The employer provides hotel rooms housing two employees per room for periods of several days.  Employees are required to return to those rooms directly from the workplace, while wearing the wet or contaminated clothing.  The employer has failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing.

 

 

[11]           The Applicant was therefore directed pursuant to paragraph 145(1)(a) of the Code, Part II, to terminate the contravention(s) no later than June 27, 2003, and to take steps before this date, to ensure that the contraventions do not continue to re-occur, pursuant to paragraph 145(1)(b) of the Code.

 

[12]           On July 9, 2003, the Applicant appealed the H.S.O.’s directions pursuant to subsection 146(1) of the Code requesting that only the second item of the direction be rescinded. On November 30, 2005, the Appeals Officer declined to rescind the H.S.O.’s direction and instead varied these directions by adding another contravention of the Regulations. It is this decision, which lies at the heart of the present application for judicial review.

 

DECISION UNDER REVIEW

[13]           The Appeals Officer conducted a hearing on January 19 and 20, 2005, and examined the written submissions concerning the Applicant’s appeal. 

 

[14]           The Appeals Officer found that unlike the findings of the H.S.O., the Regulations did not call for a separate change room but rather only a change room. Also, the Appeals Officer found that the H.S.O. was not in a position to independently establish that the quantities of product present on the employees’ work clothing were sufficient to render the clothing contaminated or unfit to wear.  While the H.S.O. used the MSDS sheets to confirm that diesel fuel, lubricating grease, antifreeze and hydraulic oils met the definition of a hazardous substance, he did not conduct any tests or require the Applicant to provide him a copy of a proper hazard assessment completed in accordance with subsection 10.4(1) of the Regulations and the definition of a hazardous substance in subsection 122(1) of the Code.

 

[15]           Notwithstanding these shortcomings in the H.S.O.’s direction, the Appeals Officer was satisfied that the evidence confirmed the following:

 

 

·                    employees were regularly engaged in work that brought their clothing into contact with hazardous substances, which included diesel fuel, lubricating grease, antifreeze and hydraulic oils;

 

·                    the disposable overalls provided to employees by CPR were inappropriate because they were not sufficiently tear resistant under all aspects of the work and they were not impermeable to the oils used by employees;

 

·                    CPR failed to conduct a proper hazard assessment in accordance with subsection 10.4(1) of the COHSR (Regulations) and the definition of a hazardous substance given in section 122(1) of the Code; and

 

·                    CPR’s past practice was to provide a separate room for changing and storing work clothing that was wet or contaminated by a hazardous substance.

 

 

[16]           Consequently, the Appeals Officer gave the following direction to the Employer under paragraph 145(1)(b) and subsection 145(5):

The …Appeals Officer is of the opinion that the following provision is being contravened:

 

Paragraph 125.1(i) [should be 125(1)(i), my correction] of the Canada Labour Code, Part II, and section 10.4 of the Canada Occupational Health and Safety Regulations:

 

The employer has failed to appoint a qualified person to carry out the hazard investigation required by section 10.4 of the Canada Occupational Health and Safety Regulations to determine his obligation in respect of paragraph 9.44 (1) (b) and subsections 9.44 (2) and (3) of the same Regulations in respect of the hazardous substances used and handled by track maintenance machine operators, which include diesel fuel, ethylene glycol antifreeze, hydraulic oils, and greases, and in respect of feces and animal carcasses that may be found on the track bed. 

 

 

RELEVANT LEGISLATION

[17]           The statutory source of this contested decision is found in paragraph 145(1)(b) of the Code, which states as follows:

 

[18]           The H.S.O. found that the Applicant failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing, in violation of paragraph 125(1)(i) of the Code as well as paragraph 9.44(1)(b) and subsections 9.44(2) and (3) of the Regulations. The relevant sections state as follows:

 

[19]           Pursuant to paragraph 145(1)(b) and subsection 145(5), the Appeals Officer found that the Applicant had contravened paragraph 125.1(i) [should be 125(1)(i)] cited above, as well as section 10.4 of the Regulations. The Appeals Officer also made reference to subsection 122(1) of the Code.  These state as follows:

 

 

[20]           The duty of the Appeals Officer is set out in section 146.2 of the Code. The relevant portions state as follows:

 

ANALYSIS

Did the Appeals Officer err in law with respect to his statutory interpretation of the provisions of paragraph 9.44(1)(b) of the Regulations?

Standard of review

[21]           This issue deals specifically with the statutory interpretation of the words “regularly” and “contaminated” as used in paragraph 9.44(1)(b) of the Regulations. Statutory interpretation is a question of law. It is well established jurisprudence that the standard of review applicable to questions of law is correctness (Canada (Attorney General) v. Fletcher, [2003] 2 F.C. 475 (C.A.)).

 

Statutory interpretation

[22]           The word “regularly,” as in “regularly engaged in work,” is not defined in the statute.   Similarly, the statute does not provide a definition for the word “contaminated.” Where a statute is silent with respect to the meaning of a word, section 12 of the Interpretation Act, R.S., 1985, c. I-21, s. 12 provides that all statutes are remedial and as such must be given “a fair, large and liberal construction and interpretation as best ensures the attainments of the Act's objectives”. The words chosen by Parliament must be consistent with the apparent objectives of the provision in question.

 

[23]              It is therefore necessary to look to the background and purpose of the regulation in order to determine the meaning of these words. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. No. 27, Mr. Justice Iacobucci held at paragraph 21: 

Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

 

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

 

[24]           The word “regularly” appears numerous times in the Regulations and it is not defined in any of these instances, which can be found as follows: 

 

                                                                                    [emphasis added]

 

[25]           It is my view that the decision maker was correct in his interpretation of the word “regularly” in that he rejected the restrictive interpretation proposed by the Applicant and adopted a fair, large and liberal interpretation that would be in keeping with the objectives of the Code.  The Appeals Officer noted that the Applicant relied on the analogy made by H.S.O. Chemiliuk, who stated as follows (para. 69 of the Appeals Officer’s decision):

As an example, a person who works in a wash bay area where his job entails the use of water pressure washing equipment is likely to become wet on a regular basis.  In your example the wet clothing referred to would be as a result of being caught in a rain or snow storm.  As we know weather cannot be predicted and rain and snow storms are intermittent in nature.  The employees you refer to may not be exposed to the threat of wet clothing for extended periods of time and not on a regular basis.

 

[26]           In my view, the Appeals Officer was correct to reject this interpretation of the word. For to follow this inapt analogy to its logical conclusion, it would imply that employees would be required to provide its employees with rain protection gear, for instance. It is unlikely that Parliament would have intended such a result. Rather, the statute clearly refers to hazardous substances and the likelihood of workers regularly getting their clothes wet and contaminated by these hazardous fluids and not by rain. These hazardous fuels include diesel fuel, lubricating grease, antifreeze and/or hydraulic oils. Moreover, the situation of the workers in question is far removed from that of a person working in a car wash. Therefore, the Appeals Officer was correct to reject this narrow interpretation of the word “regularly”.

 

[27]           I now turn to the second word, the interpretation of which is in dispute.  Like “regularly”, there is no definition in the Regulations of the word “contaminated.”  The word appears in different places in the Regulations, none of which provides a definition of the word itself. It can be found as follows:

 

                                                                                    [emphasis added]

 

[28]           Relying on the ordinary dictionary meaning of the word, I find nothing incorrect in the approach adopted by the Appeals Officer where he relied on the Merriam Webster’s Collegiate Dictionary to interpret the meaning of the word contaminated as used in the Regulations. In addition, the Appeals Officer did not err in law in ascribing a liberal and broad meaning in keeping with the objectives of Parliament when it adopted this legislation. To do otherwise as was urged by the Applicant who advocated the adoption of a technical definition, would be to limit the intentions of Parliament to prevent accidents and injury to health in the workplace.

 

[29]           To conclude on this first issue, the Appeals Officer did not commit any legal error in his interpretation of either of these words.  

 

Were the Appeals Officer’s findings made in a perverse or capricious manner without regard to the evidence?

Standard of Review

[30]           It is first necessary to determine the applicable standard of review of the Appeal Officer’s decision. An analysis of the four factors of the pragmatic and functional test set out in Dr. Q  v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 will determine the standard of review to adopt.

 

            i)          Presence of a privative clause or right of appeal

[31]           The Code contains a strong privative clause, which suggests deference by the Court.  This matter was dealt with by the Federal Court of Appeal in Martin v. Canada (Attorney General),  2005 FCA 156, [2005] F.C.J. No. 752 (F.C.A.) (QL), at paragraphs 16 and 17, where Mr. Justice Rothstein held as follows: 

[…] 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.

 

 

[…] 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.

 

(See also Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at para. 19).

 

 

            ii)         Relative expertise

[32]           The Code recognizes Health and Safety Officers as specialized decision makers. Appeal Officers likewise now enjoy all the powers of Health and Safety Officers and as such, this Court should not intervene unless the decision can be shown to have been made in a patently unreasonable manner. In this regard, my colleague, Mr. Justice Rouleau said it best in Vancouver Wharves Ltd. v. Canada (Attorney General), [1998] F.C.J. No. 943 (F.C.T.D.) (QL) at paragraph 17:

[…] The Regional Safety Officer is a specialized decision maker and those findings which rest squarely within his expertise are to be given a great deal of deference and should not be interfered with unless they are made in a perverse or capricious manner or without regard to the evidence.

 

 

iii)        Purpose of the statute

[33]           The purpose of the Canada Labour Code is to prevent accidents and injury to health in the workplace. Thus the Code is preventive in nature. That is why this Court must give the broadest interpretation to terms that are consistent with the facts of the case. This is particularly true, where as in this case, the Code is silent on the definition of terms that are substantive issues. This factor however, implies less deference.

 

iv)        Nature of the Question

[34]           Where the question is based on purely factual considerations, the Court must accord greater deference with respect to the impugned decision. However, where the issues are of mixed fact and law, deference will be less pronounced. Finally, legal questions would invite the Court’s intervention. It is clear that on this issue, the Appeal Officer based his decision on facts and indeed the lack of facts with respect to his findings on the investigation carried out by the H.S.O.

 

[35]           Applying this pragmatic and functional analysis to the decision under review, the Court adopts the standard of review of patent unreasonableness. Not only is there a strong privative clause, suggesting Parliament’s intent to keep judicial interference at bay, but also the Appeals Officer enjoys statutory sanctioned expertise in the area of occupational health and safety. In addition, the purpose of the Code is preventive and remedial in nature, inviting a liberal judicial approach to a review of the Appeal Officer’s decision. Consequently, unless the findings of the Appeals Officer were made in a perverse or capricious manner without regard to the evidence, this Court will not intervene. In this, I agree with the submissions of counsel for both the Applicant and the Respondent on the issue of standard of review (Martin v. Canada (Attorney General), [2005] 4 F.C.R. 637 (C.A.) at paragraph 18).

 

[36]           In the case at bar, I agree with the Applicant’s submission that the upholding of item 2 of the H.S.O’s direction pursuant to section 9.44 of the Regulations by the Appeals Officer is patently unreasonable for the following reasons: the H.S.O. had stated:

[…] During the operation and maintenance of equipment clothing is frequently contaminated by hazardous products such as diesel fuel, lubricating grease, antifreeze and hydraulic oils. […]

 

Further on, he had concluded that:

[…] The employer has failed to provide a change room and separate storage area to ensure protection of employees exposed to wet or contaminated work clothing (decision of the Appeals Officer, Appendix A). 

 

Yet, the Appeals Officer writes at paragraphs 111, 112 and 113 of his decision:

[111]    From my examination of paragraph 9.44 (1)(b), I note that this paragraph only requires the employer to provide a change room, as opposed to a separate change room.  The term "change room" is defined as follows in Part I, Interpretation, of the COHSR:

 

1.2 In these Regulations,

…

"change room" means a room that is used by employees to change from their street clothes to their work clothes and from their work clothes to their street clothes, and includes a locker room; (vestiaire)

 

[112]    Similarly, subsection 9.44(2) of the COHSR states that wet or contaminated clothing referred to in paragraph 9.44 (1)(b) must be stored in a manner that prevents it from coming into contact with clothing that is not wet or contaminated.  However, this subsection does not specify that a separate storage room must be provided as specified by HSO Noel in his direction.

 

[113]    With regard to the question of whether or not the work clothing of the machine operators was contaminated by a hazardous substance such that paragraph 9.44(1)(b) applies, the facts are that HSO Noel relied on what he observed regarding stains on employee work clothes and what employees told them regarding the work. While he used the MSDS sheets for confirming that diesel fuel, lubricating grease, antifreeze and hydraulic oils met the definition of a hazardous substance, he did not conduct any tests, or require CPR to provide him with a copy of the proper hazard assessment completed in accordance with subsection 10.4(1) of the COHSR and the definition of a hazardous substance in section 122(1) of the Code.  Therefore, HSO Noel was not in a position to independently establish that the quantities of product present on the employees work clothing were sufficient to render the clothing contaminated or unfit to wear.

[emphasis added]

 

Then, he confirms item 2 of the direction issued by H.S.O. Noel (paragraph 121 of the Decision dated November 30, 2005).  This is a flagrant contradiction that warrants the intervention of this Court.

 

Did the Appeals Officer breach the rules of natural justice or procedural fairness by failing to give the Applicant an opportunity to make submissions and be heard on the concerns regarding the hazard investigation as stipulated in section 10.4 of the Regulations?

Standard of Review

[37]           While the standard of review of patent unreasonableness applies to the Appeal Officer’s substantive direction, this standard of review does not apply to breaches of the rules of natural justice and questions of procedural fairness.  In this regard, I agree with the submissions of counsel for the Applicant on this question when he relies on Mr. Justice Linden’s ruling in Sketchley v. Canada (Attorney General), [2005] F.C.J. No 2056 (F.C.A.) (QL), 2005 FCA 404, which bears repeating in its entirety:

 

[52]      Second, the distinction between judicial review on the grounds of breach of procedural fairness, and the standard of review in other cases of substantive judicial review, must be recognized, as the pragmatic and functional approach properly applies only to the latter. Although Dr. Q appears to have implied that the pragmatic and functional analysis must be applied in every case of judicial review, this is not so; the Supreme Court's comments in Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29 [CUPE], released shortly after Dr. Q, clarifies the matter. In CUPE, Justice Binnie explained as follows the interaction between procedural fairness and the pragmatic and functional standard of review analysis:

 

100 ... It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. It is only the ultimate exercise of the Minister's discretionary s. 6(5) power of appointment itself that is subject to the "pragmatic and functional" analysis, intended to assess the degree of deference intended by the legislature to be paid by the courts to the statutory decision maker, which is what we call the "standard of review".

 

[…]

 

102 The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.

 

103 On occasion, a measure of confusion may arise in attempting to keep separate these different lines of enquiry. Inevitably some of the same "factors" that are looked at in determining the requirements of procedural fairness are also looked at in considering the "standard of review" of the discretionary decision itself... . The point is that, while there are some common "factors", the object of the court's inquiry in each case is different. [emphasis in the original]

 

(See also Bastarache, J.'s dissenting opinion in CUPE at para. 5, in which he agreed with the majority that procedural fairness and standard of review analysis are different inquiries which "proceed separately and serve different objectives," and that with respect to procedural fairness, "there is no need to determine a degree of deference".)

 

[53]      CUPE directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.

 

[54]      CUPE thus makes clear that a given decision may be reviewed both in terms of procedural fairness and according to the pragmatic and functional standard of review, with respect to different aspects of the decision (the procedural decision-making versus the substantive final decision). Procedural fairness concerns the manner in which the decision is made. The duty applicable in a given context will be determined according to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 [Baker] and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 at para. 115 [Suresh], amongst other cases. If the duty of fairness is breached in the process of decision-making, the decision in question must be set aside. By contrast, the normal standard of review analysis concerns only the final substantive decision, and this standard of review is determined according to the pragmatic and functional analysis.

 

[55]      This approach of separating procedural fairness from the standard of review inquiry accords with several of this Court's judgments in the context of the Commission's decisions under section 44(3). These decisions have emphasized precisely this distinction between procedural fairness and standard of review. For example, in Tahmourpour, supra, Evans J.A. explained the standard of review as follows:

 

[…]

 

7  A reviewing court owes no deference in determining the fairness of an administrative agency's process ... Nonetheless, the court will not second guess procedural choices made in the exercise of the agency's discretion which comply with the duty of fairness.

 

 

[38]           Applying the Sketchley analysis to the case at bar, the Court may set aside the Appeals Officer’s decision if the decision violated the rules of procedural fairness. The Applicant argues that the Appeals Officer’s decision should be set aside because the Appeals Officer failed to give the Applicant an opportunity to make submissions or to be heard on his concerns regarding the possible contravention of section 10.4 of the Regulations. 

 

[39]           Counsel for the Respondent counters that the Appeals Officer was under no duty to provide a party with an opportunity to make submissions with respect to a draft or provisional remedial order or direction prior to issuing the final order or direction.

 

[40]           It is clear that the Appeals Officer breached paragraph 146.2(h) of the Code in that he failed to give the parties an opportunity to present evidence and make submissions and to consider the information relating to section 10.4 of the Regulations.

 

[41]           The Applicant submits that it did take steps to investigate and adopt measures in light of the Respondent’s allegations. The Applicant was not afforded an opportunity to respond to the section 10.4 concerns raised by the Appeals Officer prior to the release of his decision. This prevented the Applicant from possibly expanding on its submissions regarding the assessment the employer undertook upon receiving the complaint from the Respondent.

 

[42]           The Applicant states as follows at paragraphs 18 to 21 of the Applicant’s Memorandum of Fact and Law:

 

 

18.   In response to the allegation that the Applicant had contravened the Code and relevant COHSR provisions by failing to provide surfacing crews with a separate room, the Applicant formed a joint sub-committee of the Health and Safety Committee (the “H&S Sub-Committee”) to specifically address the matter. The H&S Sub-Committee conducted a hazard assessment to determine whether the Applicant was required by the Code and COSHR to provide a separate change room for surfacing crews.

 

19.   The H&S Sub-Committee issued a hazard assessment report (the “H&S Hazard Assessment”), signed by Mr. Chris Kane, Safety Advisor and Industrial Hygienist with the Applicant. The H&S Hazard Assessment concluded that a surfacing crew employee is not regularly engaged in work in which his clothing becomes wet or contaminated by a hazardous substance and therefore, the Applicant is not required to provide a change room for its surfacing crew employees pursuant to section 9.44.

 

20.   The H&S Hazard Assessment included a recommendation that smaller surfacing crew employees be given another option, separate from their hotel room to store their work clothes. These other options included storing work clothes in a CPR vehicle, section house, at the worksite, or in another hotel room.

 

21.   On or about March 19, 2002, the Applicant implemented the following measures in response to the H&S Hazard Assessment:

 

a)      surfacing crew employees were instructed to report to a nearby station facility at any time during or after their shift to change into clean clothing in the event their clothing became contaminated;

 

b)      surfacing crew employees were provided with disposable coveralls for heavy repairs; and

 

c)      diesel refuelling equipment was equipped with a nozzle designed to prevent spills such as those found at gas stations.

 

 

[43]           Notwithstanding, a review of the Appeals Officer’s decision reveals that there is some dispute in this matter. The Appeals Officer did consider the H&S Hazard Assessment and more specifically at paragraphs 19 to 34. Based on the testimony of Mr. Rubert, Manager, Engineering Services for CPR, to whom the report of Mr. Kane was submitted, it was recommended that surfacing crews be given a place separate from their hotel room to store their work clothes. This recommendation was not implemented (Appeals Officer’s decision at para. 26).

 

[44]           For guidance on an appropriate remedy, I must turn to the Supreme Court of Canada in its seminal decision on the content of procedural fairness as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Writing for the majority, Madam L’Heureux-Dubé established a non exhaustive list of factors to consider when determining whether the procedures followed respected the duty of fairness. The Court held as follows:

¶ 23      Several factors have been recognized in the jurisprudence as relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances. One important consideration is the nature of the decision being made and the process followed in making it. In Knight, supra, at p. 683, it was held that "the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making". The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. See also Old St. Boniface, supra, at p. 1191; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at p. 118; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at p. 896, per Sopinka J.

 

¶ 24      A second factor is the nature of the statutory scheme and the "terms of the statute pursuant to which the body operates": Old St. Boniface, supra, at p. 1191. The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted: see D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 7-66 to 7-67.

 

¶ 25      A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual or individuals affected. The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113:         

 

A high standard of justice is required when the right to continue in one's profession or employment is at stake ... . A disciplinary suspension can have grave and permanent consequences upon a professional career.

 

As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), at p. 667:

 

In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it "judicial" in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.

 

The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness.

 

¶ 26      Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.). Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded: D. J. Mullan, Administrative Law (3rd ed. 1996), at pp. 214-15; D. Shapiro, "Legitimate Expectation and its Application to Canadian Immigration Law" (1992), 8  J.L. & Social Pol'y 282, at p. 297; Canada (Attorney General) v. Human Rights Tribunal Panel (Canada) (1994), 76 F.T.R. 1. Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

¶ 27      Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, per Gonthier J.

 

[45]           In applying the five factors to the case at bar, I come to the following conclusions. First, with respect to the nature of the decision, procedural protections close to the trial model would not be required by the duty of fairness in this instance. As set out clearly in section 146.2, the powers of the Appeals Officer is discretionary and are remedial at their root. This is quite unlike the quasi judicial decision making process of the Canadian Human Rights Commission, as set out in Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407 to which the Applicant has referred me.

 

[46]           Second, the statutory scheme and the "terms of the statute pursuant to which the body operates" reveal that there is a strong privative clause and no right of appeal. As such, great procedural protection would be required to protect the rights and interests of the Applicant. Third, it can be said that the outcome of the decision is of great importance to the Applicant. As a corporate citizen that prides itself in taking care of its customers, as well as its employees, to have not been given an opportunity to defend itself against the concerns and misgivings of the Appeals Officer with respect to the hazard assessment investigation is a breach of the duty of fairness.

 

[47]           The fourth point in the Baker list of factors, legitimate expectation can be said to exist. In light of the clear indications in the Code and the prior assessment undertaken by the Applicant, who would harbor the legitimate expectation that it would be given an opportunity to plead evidence and make submissions on the new contraventions found by the Appeals Officer.

 

[48]           Finally, the duty of fairness is limited by the fact that the Code grants full power to the Appeals Officer to choose the procedure to guide his deliberations. However, this discretion is not absolute for as stated in paragraph 146.2(h) (see paragraph [20] above), once the procedure to be followed has been established, the officer is compelled to give an opportunity to the parties to present evidence and make submissions to the officer.

 

[49]           In light of these five factors, I find that once the Appeals Officer had exercised his discretion regarding the procedures to follow, he had a duty of procedural fairness to solicit the submissions of the parties. He did not.

 

[50]           Therefore, I agree with the Applicant’s submission that there has been a breach of procedural fairness. This matter should be sent back to another Appeals Officer for rehearing.

 

 

 

JUDGMENT

 

THIS COURT ADJUDGES that:

1.      The application for judicial review is allowed.

2.      The directions of the Appeals Officer are set aside.

3.      The matter is remitted back to another Appeals Officer for redetermination.

4.      The applicant is entitled to its costs as per Tariff B, mid Column III.

 

“Michel Beaudry”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-2304-05

 

STYLE OF CAUSE:                          CANADIAN PACIFIC RAILWAY COMPANY

                                                            and ALLAN WOOLLARD

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      October 17 and 18, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Beaudry J.

 

DATED:                                             November 6, 2006

 

 

 

APPEARANCES:

 

Gavin Marshall                                                                         FOR APPLICANT

Jennifer Walker

 

G. James Baugh                                                                        FOR RESPONDENT

                                                                                               

 

SOLICITORS OF RECORD:

 

Fasken Martineau DuMoulin LLP                                             FOR APPLICANT

Vancouver, British Columbia

 

McGrady, Baugh & Whyte                                                       FOR RESPONDENT

Vancouver, British Columbia