Digests

Labour Relations

Judicial review challenging health and safety officer’s (HSO) determination of “normal condition of employment” in absence of investigation under Canada Labour Code, R.S.C., 1985, c. L-2, s. 129—Cabin personnel scheduled to operate flight, exercising their right to refuse to work under Code, Part II—Refusal based on in-charge flight attendant affirmations, saying same pilot indicated on previous flight he was going to “ditch” plane because he had nothing to lose—Health and safety officer proceeding with on-site assessment of matter, concluding circumstances on which refusal based constituting normal working condition of employment within meaning of Code, s. 128(2)—Whether HSO can conclude circumstances of work refusal constituting normal condition of employment through preliminary inquiry, whether HSO compelled to launch investigation under Code, s. 129 “without delay” before making such determination—Legislation not making reference to preliminary inquiry by HSO to first ascertain whether work refusal not barred by Code, s. 128(2)—While power given to HSO under Code, s. 141 to conduct inquiry at any reasonable time, this provision not overriding clear language of s. 129—Code not giving HSO jurisdiction to conduct preliminary inquiry, make any determination under s. 128(2), upon being called to workplace under s. 128(13)—This interpretation leaving exceptions under s. 128(2) in precarious position because although either exception clearly invalidating refusal to work, Code silent as to how, when s. 128(2) determination can first be made—However, deficiency can only be resolved by Parliament—Application allowed.

CUPE v. Air Canada (T-1496-08, 2010 FC 245, O’Keefe J., judgment dated March 3, 2010, 31 pp.)