In a decision rendered just before the new year, the Supreme Court of Canada (“SCC”) clarified that federally regulated employers’ obligation to inspect workplaces for safety hazards only extends to parts of workplaces over which they have control.
Most employers in Canada are provincially regulated, which means that they are subject to provincial legislation, such as Ontario’s Occupational Health and Safety Act (“OHSA”). On the other hand, employers in certain sectors fall under federal jurisdiction by virtue of the business activities they engage in, such as airlines, banks, and telecommunications companies, among others. Federally regulated employers’ occupational health and safety obligations are set out in the Canada Labour Code (the “Code”).
In Canada Post Corp. v Canadian Union of Postal Workers (“Canada Post”), the SCC allowed an appeal in respect of a judicial review decision and thereby held that Canada Post was not required to inspect mail carriers’ routes and points of delivery to fulfill its health and safety obligations under the Code. Although this decision only directly affects federally regulated employers, it will likely be persuasive to lower courts in interpreting the scope of provincial health and safety obligations, which is good news for Ontario employers.
Canada Post Corp. v Canadian Union of Postal Workers
In Canada Post, a representative of the Canadian Union of Postal Workers (the “Union”) who sat on the Local Joint Health and Safety Committee for Canada Post’s mail depot in Burlington filed a complaint with Human Resources and Skills Development Canada. The complaint alleged that Canada Post was not fulfilling its occupational health and safety obligations under s.125 (1) (z.12) of the Code because it did not inspect its mail carriers’ broader work places for safety hazards, including letter carrier routes and points of delivery, which Canada Post estimated at 72 million linear kilometres and 8.7 million points of call.
Section 125 (1) (z.12) 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 employer in a work place 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”. Notably, the Code defines “work place” broadly as including “all places where an employee works, whether or not they are under the employers’ control”.
A Health and Safety Officer (“HSO”) investigated the complaint and found that Canada Post had failed to comply with the Code by only inspecting the Burlington depot and not letter carriers’ delivery routes and points of delivery. Canada Post appealed the HSO’s decision to the Occupational Health and Safety Tribunal of Canada (“OHSTC”).
An Appeals Officer for the OHSTC reversed the HSO’s decision and found that Canada Post had not contravened the Code, because he determined that the obligation to inspect workplaces for safety hazards under the Code only applies to “parts of the work place over which the employer had control”, which does not include letter carriers’ routes and points of delivery, or “structures it neither owns nor has a right to alter”.
The Union subsequently applied to the Federal Court for judicial review of the Appeals Officers decision, but the Federal Court dismissed this application after finding that the Appeals Officer’s decision was reasonable. Consequently, the Union appealed to the Federal Court of Appeal (the “FCA”), which allowed the appeal and reinstated the HSO’s decision by finding that Canada Post had violated the Code. In turn, Canada Post appealed the FCA’s decision to the SCC.
The SCC’s Decision
The majority of the SCC allowed Canada Post’s appeal, thereby reinstating the Appeals Officer’s decision, because it found that it was reasonable for him to conclude that the obligation under the Code to annually inspect workplaces for hazards extends only to parts of the workplace over which the federally regulated employer has control.
In reaching this decision, the SCC applied the revised framework for the judicial review of administrative decisions from its 2019 decision in Canada (Minister of Citizenship and Immigration) v Vavilov (“Vavilov”). Where an administrative decisionmaker provides reasons for their decision, subject to certain exceptions, Vavilov requires reviewing courts to determine whether the decision is internally coherent and reasonable in light of the factual circumstances and law relevant to the decision.
The SCC found that the Appeals Officer’s determination that employers must only inspect parts of the workplace over which they have control was reasonable, because an employer who does not control a workplace cannot ensure that it is inspected, nor can they remedy any safety hazards that may be identified through an inspection. In other words, extending the obligation to workplaces that employers do not control would not further the purpose of s.125 (1) (z.12), because employers cannot fix hazards on property which they do not control, such as Canada Post’s expansive delivery routes and points of delivery.
The SCC also rejected the Union’s argument that the Appeals Officer’s decision was internally inconsistent and therefore unreasonable. The Union argued that the Appeals Officer’s finding that Canada Post could not address safety hazards on delivery routes and at points of delivery was contradicted by his recognition that Canada Post already had a policy for conducting “route audits” to identify and resolve hazards on delivery routes. The SCC found that there was no inconsistency in Canada Post voluntarily adopting a policy to identify and resolve safety hazards for some routes, where possible, and the conclusion that the Code does not require Canada Post to inspect every delivery route and every point of delivery each year, regardless of any impracticalities.
Therefore, the SCC found that Canada Post did not violate the Code by not inspecting delivery routes and points of delivery, because it does not control these much broader workplaces.
Canada Post is great news for federally regulated employers, because the SCC has made it clear that their obligation to conduct annual safety inspections of workplaces under the Code does not extend to workplaces that they do not control.
Nonetheless, as stated above, Canada Post is also potentially good news for provincially regulated employers in Ontario because it will likely be persuasive to lower courts interpreting the scope of employers’ duty to inspect workplaces under the OHSA, particularly where employers cannot have absolute control over the safety of their employees working within an expansive workplace. While this SCC decision applies only to federally regulated employers, provincially regulated Ontario employers are more likely to be successful in taking the position that their duty to inspect their workplaces under the OHSA only extends to parts of the workplace that they actually control.
However, until a decision clarifies an employer’s duty to inspect workplaces under the OHSA, provincially regulated Ontario employers should continue to abide by their broad health and safety obligations to their employees given that the OHSA defines a workplace very broadly as “any land, premises, location or thing at, upon, in or near which a worker works”. Moreover, in Blue Mountain Resorts Limited v Ontario (Labour) the Ontario Court of Appeal interpreted this definition of a workplace under the OHSA broadly, not as a fixed location but as one that may travel with a worker, as “a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”. It is possible that the definition of certain provincially regulated workplaces under the OHSA will be interpreted narrowly in accordance with the SCC decision for Canada Post’s federal operations, particularly when it comes to the impracticality an employer could face when inspecting a workplace with structures it does not own or physically control for hazards. It is, however, equally possible that the definition of a workplace under the OHSA for other employer obligations could be interpreted broadly and liberally in accordance with the legislation’s remedial and preventative intent. Provincially regulated Ontario employers should thus continue to be mindful of the potential wide scope of workplaces under the OHSA and their obligations to maintain a safe workplace.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.