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WORKPLACE HEALTH AND SAFETY - Employer obligations - Safety of workplace

Wednesday, July 26, 2017 @ 9:08 AM  

Lexis Advance® Quicklaw®
Appeal by the Canadian Union of Postal Workers from a judicial review judgment that affirmed a judgment by an Occupational Health and Safety Tribunal. A worker within the Union filed a complaint that the employer, Canada Post, failed to comply with its workplace inspection obligation under s. 125(1)(z.12) of the Canada Labour Code by limiting inspections to the Canada Post building, but not inspecting carrier routes. A Health and Safety Officer found the employer failed to ensure an annual inspection of the workplace. Canada Post appealed. An Appeals Officer of the Tribunal rescinded the contravention on the basis that the employer inspector obligation did not cover areas where a letter carrier is engaged in work outside of the physical workplace, as such places were not under employer control. The Union sought judicial review. The reviewing court held that the Appeals Officer's interpretation of s. 125(1)(z.12) of the Code was reasonable, as it recognized the employer's health and safety obligations while avoiding obligations that could not be fulfilled. The Union appealed.

HELD: Appeal allowed. The Appeals Officer's decision was unreasonable and required judicial intervention. The Appeals Officer accepted that a workplace was sufficiently broad in scope to include letter carrier routes. Such finding inferred that a workplace encompassed a place regardless of whether it was under employer control. The duty under s. 125(1) of the Code was clear and unambiguous. It provided that every employer shall fulfil the inspection obligations where it controlled the work place in which the employees work, and where it controlled the work activity in a workplace that it did not control. It was thus unreasonable to interpret the provision as not applying where obligations could not be fulfilled by an employer. Here, Canada Post controlled the activities of letter carriers in the workplace situated outside of its physical buildings and therefore was obliged to fulfill its inspection obligation under s. 125(1)(z.12) of the Code. In addition, Canada Post policies involved the ability to identify and resolve hazards encountered by letter carriers on their routes. The Appeals Officer's suggestion to the contrary was unreasonable. The Health and Safety Officer's direction in respect of the initial contravention was restored.

Canadian Union of Postal Workers v. Canada Post Corp., [2017] F.C.J. No. 708, Federal Court of Appeal, M. Nadon, D.G. Near and D.J. Rennie JJ.A., July 13, 2017. Digest No. TLD-July242017009