T-950-02
2003 FC 1158
Douglas Martin and Public Service Alliance of Canada (Applicants)
v.
Attorney General of Canada (Respondent)
Indexed as: Martinv. Canada (Attorney General) (F.C.)
Federal Court, Tremblay-Lamer J.--Vancouver, August 23; Ottawa, October 6, 2003.
Labour Relations -- Judicial review of decision of appeals officer rescinding HRDC safety officer's directions under Canada Labour Code, s. 145(2)(a),(b) -- Issue: whether wardens tasked with law enforcement by National Parks Act in danger as not furnished with firearms -- Safety officer directing Parks Canada to either alter law enforcement duties or protect wardens from danger -- Appeals officer held in management's favour, safety officer having confused risk with danger -- Meaning of "danger" under Code -- Statute giving appeals officers broad investigative powers beyond those of health and safety officers -- Having power to enter workplace, assess conditions -- Deference to be accorded specialized labour relations tribunals' fact determinations, legal interpretations -- Appeals officer concluding safety officer's directions based on mere paper exercise -- Could not be concluded impugned decision unsupported by reasons given -- Safety officer must find no danger in absence of evidence death, grievous bodily harm could reasonably occur to warden in law enforcement -- Appeals officer found danger entirely hypothetical, speculative -- Court must consider repercussions of danger finding: company could be shut down, national activity terminated -- Not shown danger risk likely, reduced by having sidearm -- If risk in job description enough for danger finding, s. 145(2) directions would have to issue for every job involving risk element.
Administrative Law -- Judicial Review -- Certiorari -- Standard of review -- Decision of appeals officer rescinding directions given by HRDC safety officer under Canada Labour Code -- Whether park wardens in danger performing law enforcement duties without firearms -- Deference level determined by pragmatic, functional approach -- Privative clause -- Tribunal's expertise level -- Statute's purpose -- Nature of problem -- Appeals officers given broad investigative powers, better positioned than Court to ascertain workplace conditions -- Statutory provision aimed at public protection -- Issue not pure question of law -- Appeals officer undertakes factual inquiry, determines whether conditions within Code definition of "danger" -- Patent unreasonable-ness appropriate review standard except for fact Court's first case on new Code definition of "danger" -- Reasonableness simpliciter appropriate standard herein -- Impugned decision was based on finding danger entirely hypothetical, speculative -- Taken as whole, could not be said decision not supported by reasons given.
Practice -- Mootness -- Judicial review application on issue whether dangerous for unarmed park wardens to discharge law enforcement duties -- Attorney General arguing case moot, wardens no longer being responsible for law enforcement -- Case not entirely academic as establishing review standard for decisions of appeals officers under Canada Labour Code.
This was an application for judicial review of the decision of an appeals officer rescinding directions given by a Human Resources Development Canada safety officer.
The Chief Executive Officer of Parks Canada had issued a direction that park wardens, whose duties included enforcement of the law under the National Parks Act, would not be routinely issued sidearms. Martin, one of the applicants herein, filed a complaint with a safety officer to the effect that he was not provided with the necessary protective equipment. Following an investigation, the safety officer made a determination that the lack of a sidearm did place a warden in danger. Acting under the power vested in him by Canada Labour Code, paragraphs 145(2)(a) and (b), the safety officer directed that Parks Canada either alter the wardens' law enforcement duties or protect them from danger. Parks Canada appealed to the Canada Appeals Office on Occupational Health and Safety. Martin and PSAC also appealed, because the directions did not go so far as to expressly order the issuance of sidearms. The appeals officer held in favour of management, being of opinion that the safety officer had confused risk with danger and that danger had not been established on the evidence. Under a policy established in 1989, park wardens engaged in law enforcement were to be furnished with a baton, pepper spray and a protective vest. Firearms were to be issued only in special circumstances.
Three issues were before the Court: (1) the appropriate review standard; (2) whether the appeals officer had erred in his interpretation of the definition of "danger" for purposes in the Code; and (3) was the case moot?
Held, the application should be dismissed.
As for standard of review, the propriety of a reviewing court adopting a pragmatic and functional approach to the determination of deference level was reaffirmed by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia. The first of the four factors considered in that approach is the absence or presence of a privative clause. Where, as here, statutory provision is made for an appeal, that is an indication that less deference is to be accorded the tribunal's decisions. But the most important of the factors is the tribunal's level of expertise. Still, expertise is a relative concept. It is for a court to characterize the decision maker's expertise, consider its own expertise and identify the nature of the issue before the decision maker. Relative expertise can relate to questions of pure law, mixed fact and law or fact alone.
A third factor is the statute's purpose. If it is to protect the public and involves policy issues or the balancing of interests, this calls for greater deference. If the legislative purpose deviates substantially from the normal role of the courts, this would militate in favour of greater deference.
The last of the factors is the nature of the problem. Greater deference is owed with respect to findings of fact than to conclusions on questions of law. That is especially so if the legal issue is one of general importance or of great precedential value. But, of course, many determinations involve questions of both fact and law. In such cases, the degree of deference will depend upon whether the issue is more fact- or law-intensive.
In the case at bar, the decision of an appeals officer has been safeguarded by a full privative clause under the statutory amendments of 2000. That stands as compelling evidence of Parliament's intention that deference be accorded. What is more, appeals officers have been given broad powers of investigation in addition to those possessed by health and safety officers. They have greater expertise than the Court in determining whether the circumstances of a workplace constitute a danger within the contemplation of the Code. They are empowered to enter a workplace to assess the conditions. The Court was in no position to interfere with the findings made by these appeals officers.
The power to issue directions under subsection 145(2) is intended to prevent injuries at the workplace and so is aimed at protecting the public. This was yet another reason why greater deference was owed to the decisions of appeals officers.
Turning to the final factor, nature of the problem, the Court was unable to agree with applicant's submission, that the issue was a pure question of law. The appeals officer has to undertake a factual inquiry regarding workplace circumstances to determine whether they are within the Code definition of danger. Upon a consideration of all the factors, the appropriate review standard was that of patent unreasonableness.
That being said, this was the Court's first occasion to hear a case involving the new definition of danger, found in the amendments of 2000. That fact rendered the problem more law-intensive. Indeed, all of applicant's submissions concerned the appeal officer's interpretation of the new definition of danger. Even so, that did not dictate that the correctness standard of review was here applicable. The Supreme Court of Canada has held, with respect to labour relations decisions by specialized tribunals, that deference should be given to both fact determinations and legal interpretation. Nevertheless, given the precedential value of this decision, providing guidance to other appeals officers, the impugned decision ought to undergo "significant searching or testing" in accordance with the reasonableness simpliciter standard.
The directions issued by the safety officer were based on his view that, in the discharge of their law enforcement duties, park wardens might have to apply lethal force, human behaviour being unpredictable. The appeals officer agreed that it will sometimes be impossible for a warden to retreat from a confrontation to allow for evaluation of the proper course of action. In such case the warden could indeed face injury or even death. Even so, he set aside the safety officer's directions as based on little more than a paper exercise.
Under the reasonableness simpliciter review standard, a court must not interfere unless the decision is shown to have been unreasonable, that is, not supported by any reasons that can withstand a somewhat probing examination. Taken as a whole, it could not be concluded that the reasons given did not support the impugned decision.
The "old" and "new" statutory definitions of "danger" had to be considered in order to understand the appeals officer's decision. The new Code definition makes it clear that any potential hazard or condition or future activity can constitute a danger. Thus a safety officer may look beyond the immediate circumstances existing at the time of investigation in determining whether "danger" exists as defined in the Code. Speculative situations remain excluded by the amended definition. Thus, a safety officer must find there is no danger in the absence of specific evidence that grievous bodily harm or death could reasonably occur to a park warden when involved in law enforcement. While the officer erred in concluding that the injury had to occur immediately after exposure to the activity, the new definition does require that the injury occur "before the hazard or condition can be corrected, or the activity altered". But that error did not affect the decision as a whole. The decision was based on the finding that the danger was entirely hypothetical and speculative. He would have reached the same conclusion regardless of the error.
While the Court should not thwart the legislature's public welfare objectives, the major repercussions caused by a finding of danger had to be taken into account. Code subsection 145(2) confers upon the safety officer the enormous power to shut down a company or cause some national activity to cease. The Court agreed with the submission of the Attorney General, that the ability of park wardens to exercise good judgment by altering the law enforcement activity itself could mitigate the risk of their suffering grievous bodily harm or even death. It was not demonstrated that the risk was likely and that possession of a sidearm would reduce the risk. If the presence of risk in a job description was enough to justify a danger finding, directions under subsection 145(2) would have to be issued in respect of every job involving an element of risk.
As concluded by the appeals officer, the determination of law enforcement levels and appropriate protective measures is a question of risk analysis and control. "Danger", as defined in the Code, ought not be declared in the absence of an evidentiary basis.
The Attorney General submitted that this case was moot in that wardens are no longer responsible for law enforcement. Be that as it may, this case was not merely academic since it establishes the standard of review to be applied to the decisions of appeals officers under the Code, as amended.
statutes and regulations judicially
considered
| Canada Labour Code, R.S.C., 1985, c. L-2, ss. 122(1) "danger" (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 1; S.C. 2000, c. 20, s. 2), 122.1 (as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 1), 145(2)(a) (as am. by S.C. 2000, c. 20, s. 14), (b) (as am. idem), 145.1(2) (as enacted idem), 146.1 (as enacted idem), 146.2 (as enacted idem), 146.3 (as enacted idem), 146.4 (as enacted idem). |
| Canada National Parks Act, S.C. 2000, c. 32. |
| cases judicially considered |
| applied: |
| Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 179 B.C.A.C. 170; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 11 Admin. L.R. (2d) 59; 93 CLLC 14,022; 150 N.R. 161; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; (1990), 88 Nfld. & P.E.I.R. 15; 48 Admin. L.R. 1; 91 CLLC 14,002; 123 N.R. 241; R. v. Jarvis, [2002] 3 S.C.R. 757; (2002), 317 A.R. 1; 219 D.L.R. (4th) 233; [2003] 3 W.W.R. 197; 8 Alta. L.R. (4th) 1; 169 C.C.C. (3d) 1; 6 C.R. (6th) 23; 101 C.R.R. (2d) 35; [2003] 1 C.T.C. 135; 2002 DTC 7547; 295 N.R. 201; Welbourne and Canadian Pacific Railway Co., [2001] C.L.C.A.O.D. No. 9 (QL); Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110. |
| referred to: |
| Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890; (1997), 149 D.L.R. (4th) 577; [1997] 8 W.W.R. 517; 158 Sask. R. 81; 50 Admin. L.R. (2d) 1; 30 C.C.E.L. (2d) 149; 37 C.C.L.T. (2d) 1; 216 N.R. 1; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; (1994), 114 D.L.R. (4th) 385; [1994] 7 W.W.R. 1; 22 Admin. L.R. (2d) 1; 46 B.C.A.C. 1; 92 B.C.L.R. (2d) 145; 14 B.L.R. (2d) 217; 4 C.C.L.S. 117; 168 N.R. 321; 75 W.A.C. 1; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; Pratt and Gray Coach Lines Limited (1988), 1 C.L.R.B.R. (2d) 310 (C.L.R.B.); Canada (Attorney General) v. Bonfa (1990), 73 D.L.R. (4th) 364; 33 C.C.E.L. 105; 113 N.R. 224 (F.C.A.); Abood and Air Canada, [2003] C.L.C.A.O.D. No. 2 (QL); Canada (Correctional Service) and Schellenberg, [2002] C.L.C.A.O.D. No. 6 (QL); International Longshore and Warehouse Union and Pacific Coast Terminals Co., [2002] C.L.C.A.O.D. No. 16 (QL); Bouchard and Canada (Correctional Service), [2001] C.L.C.A.O.D. No. 28 (QL); Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37; 155 O.A.C. 225 (C.A.). |
APPLICATION for judicial review of a decision of an appeals officer under the Canada Labour Code setting aside a safety officer's ruling that park wardens are in danger due to having to perform law enforcement duties though not furnished with firearms. Application dismissed.
| appearances: |
| Andrew J. Raven and Paul Champ for applicants. |
| Kirk N. Lambrecht, Q.C. and J. Sanderson Graham for respondent. |
| solicitors of record: |
| Raven, Allen, Cameron & Ballantyne, Ottawa, for applicants. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for order and order rendered in English by
[1]Tremblay-Lamer J.: This is an application for judicial review of the decision of the appeals officer, Serge Cadieux, (the appeals officer) in which he allowed the appeal of the Parks Canada Agency (Parks Canada) and rescinded the directions issued by Robert Grundie, a health and safety officer with Human Resources Development Canada (the safety officer).
FACTS
[2]In January 2000, the Chief Executive Officer of Parks Canada issued a direction that sidearms would not be routinely issued as standard equipment to those park wardens who perform law enforcement under the Canada National Parks Act, S.C. 2000, c. 32.
[3]On June 5, 2000, Mr. Douglas Martin, a park warden from Banff National Park, and one of the applicants herein, filed a complaint with the safety officer, in which he complained that he was not provided with all the necessary protective equipment to perform his law enforcement duties, namely a sidearm.
[4]Pursuant to Mr. Martin's complaint, the safety officer initiated a national investigation from which he concluded that any law enforcement activity performed by a park warden without the necessary protec tive equipment, such as a sidearm, constituted a danger.
[5]As a result of his conclusions, the safety officer exercised his authority under paragraphs 145(2)(a) [as am. by S.C. 2000, c. 20, s. 14] and (b) [as am. idem] of the Canada Labour Code, R.S.C., 1985, c. L-2 (the Code) to issue two directions to Parks Canada. The directions, both dated February 1, 2001, required Parks Canada to take action to either alter the law enforcement duties of park wardens or to protect them from the danger presented by such duties. One direction was addressed to the Chief Executive Officer of Parks Canada, and applied to all park wardens conducting law enforcement activity anywhere in Canada. The other was directed to the Superintendent of Banff National Park, and applied to park wardens conducting law enforcement activity in that park.
[6]Parks Canada decided to appeal the safety officer's directions to the Canada Appeals Office on Occupational Health and Safety. Mr. Martin and the Public Service Alliance of Canada also decided to appeal the safety officer's directions on the basis that the directions failed to expressly order Parks Canada to issue sidearms or develop a procedure for the issuance of sidearms.
[7]As a result of the appeals filed by both the employer and the employee in this matter, the appeals officer presided over hearings conducted pursuant to section 146.1 of the Code [as enacted by S.C. 2000, c. 20, s. 14].
[8]The appeals officer rendered his decision on May 23, 2002, in which he allowed the appeal of Parks Canada and rescinded the directions issued by the safety officer. He was of the opinion that the safety officer had confused risk with danger and that there was insufficient evidence to conclude that a situation of danger existed as defined in the Code.
[9]The applicants seek judicial review of this decision.
THE MANDATE OF PARK WARDENS
[10]In order to fully understand the complaint and more particularly the sidearms issue, it is useful to have a look at the essential features of the mandate of park wardens within national parks at the time of Mr. Martin's complaint, and to chronicle the events which gave rise to the complaint.
[11]The mandate of park wardens involves natural resource management, public safety as well as law enforcement activities.
[12]Natural resource management activities encompass fire management, wildlife management, ecological monitoring and environmental impact assessment, research and collection activities and the natural resources management process.
[13]Public safety activities consist of emergency response and search and rescue.
[14]Law enforcement activities encompass compliance or enforcement. Park wardens provided law enforcement in National Parks, National Park Reserves, the Saguenay-St. Lawrence Marine Park (Quebec), and National Historic Sites at Louisbourg (Nova Scotia) and the Chilkoot Pass (Yukon).
[15]In 1989, Parks Canada created a national policy for law enforcement (Management Bulletin 2.1.9: Law Enforcement in National Parks). This 1989 national policy provided for the routine issuance of baton, pepper spray and protective vest to those park wardens who were engaged in law enforcement. It also provided that firearms could be issued to park wardens in special circumstances.
[16]In the early 1990s, shortly after the commencement of a national policy, the Quebec Region of Parks Canada commissioned a consultants' study of the safety of park wardens who perform law enforcement. The CEGEP study revealed deficiencie s in training and operational practice within the warden service. The lack of compulsory training prior to employment as a park warden was specifically identified as a safety deficiency. The possible solutions advanced included training and issuance of a sidearm (CEGEP Study, Methodology).
[17]Parks Canada took action on the recommendations respecting training and by the early 1990s provided a comprehensive law enforcement training program for park wardens. This consisted of study and operational practice at the RCMP Depot in Regina, Saskatchewan.
[18]In July 1999, a working group was struck to finalize recommendations for an arming policy within Parks Canada. The working group met once near Victoria B.C. (the Victoria Committee) in early September of 1999. In October 1999, the Chair of the Victoria Committee made a presentation outlining arming options to the Parks Canada Executive Board. The option preferred by the working group included a site-by-site review of the need for sidearms over a two-year period.
[19]In July 2000, the national law enforcement working group issued guidelines for risk mitigation for use pending finalization of law enforcement planning in each park.
[20]Douglas Martin filed his complaint shortly after the Chief Executive Officer directed that sidearms would not be routinely issued to park wardens as standard equipment, and shortly before Parks Canada issued its guidelines for risk mitigation. The risk assessment referred to in the direction of the Chief Executive Officer had not been completed at this time.
ISSUES
1. What is the appropriate standard of review of the appeals officer's decision?
2. Did the appeals officer err in his interpretation and application of the definition of "danger" in the Code?
3. Is this case moot?
ANALYSIS
| Standard of Review |
[21]In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada confirmed that a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to determine whether a particular issue before the administrative tribunal should receive exacting review by a court, undergo significant searching or testing, or be left to the near exclusive determination of the decision maker. There are four main factors that must be considered in determining the proper standard of review for a decision from an administrative tribunal: the presence or absence of a privative clause; the purpose of the statute as a whole and the provision in particular; the relative expertise of the decision maker to the court on the matter in issue; and the nature of the problem.
[22]The first factor focuses on the presence or absence of a privative clause. Deference has often been linked to the existence of a privative clause. A "full" privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. However, it does not preclude review o n the basis of an error of law if the provision in question is one that limits jurisdiction (Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890).
[23]The presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors strongly indicate to the contrary. Conversely, a clause in an act permitting appeals is an indication that less deference should be afforded to the tribunal's decision (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[24]The second factor, determining the tribunal's relative expertise, has been identified as the most important of the factors that a court must consid er in settling on a standard of review (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748). If a tribunal has been granted with a particular expertise with respect to achieving the aims of the legislation, either through the specialized knowledge of its decision makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be afforded. Yet, expertise is a relative concept, not an absolute one. Making an evaluation of relative expertise between the decision maker and the court has three dimensions: the court must characterize the expertise of the decision maker; it must consider its own expertise relative to the decision maker; and it must identify the nature of the specific issue before the decision maker relative to this expertise (Pushpanathan, supra).
[25]Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and law, or fact alone. The composition of an administrative body might endow it with knowledge uniquely suited to the questions before it and deference might, therefore, be called for under this factor (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557). Similarly, an administrative body might be so habitually called upon to make findings of fact in a distinctive legislative context that it can be said to have gained a measure of relative institutional expertise (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554). Simply put, an administrative body called upon to answer a question that falls within its area of relative expertise will generally be entitled to greater curial deference (Pushpanathan, supra).
[26]The third factor is the purpose of the statute. If the question before the administrative body is one of law or engages a particular aspect of the legislation, the analysis under this factor must also consider the specific legislative purpose of the provision(s) implicated in the review (Dr. Q, supra).
[27]A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, encourages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court (Pezim, supra). Reviewing courts should also consider the breadth, specialization, and technical or scientific nature of the issues that the legislation asks the administrative tribunal to consider. A legislative purpose that deviates substantially from the normal role of the courts suggests that the legislature intended to leave the issue to the discretion of the administrative decision maker and, therefore, militates in favour of greater deference. Conversely, a piece of legislation or a statutory provision that essentially seeks to resolve disputes or determine rights between two parties will demand less deference (Dr. Q, supra).
[28]The final factor is the nature of the problem. This takes into account whether the nature of the question in dispute is one of fact or law. In general, deference will be given to questions of fact because of the advantage enjoyed by the primary finder of fact. By contrast, less deference will be afforded to questions of law, because the finder of fact may not have developed familiarity with particular questions of law. This is particularly so where the decision will be one of general importance or great precedential value (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84). However, the distinction between fact and law is not always so clear. Many determinations consist of questions that involve both fact and law (Pushpanathan, supra). With respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive (Dr. Q, supra).
[29]Having considered each of these factors, a reviewing court must settle upon one of the three currently recognized standards of review (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247). Where the balancing of the four factors suggests considerable deference, the patent unreasonableness standard will apply. Where little or no deference is called for, a correctness standard will apply. If the balancing of factors suggests a standard of deference somewhere in the middle, the reasonableness standard will apply.
[30]In the case at bar, the Code contains a full privative clause with regard to decisions of appeals officers. The relevant provisions in the Code are as follows [ss. 146.3 (as enacted by S.C. 2000, c. 20, s. 14), 146.4 (as enacted idem)]:
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.
[31]The "full" privative clause was introduced in the Code in the amendments of September 2000. The insertion of the "full" privative clause in the Code is compelling evidence that Parliament intended that deference be given to decisions of appea ls officers. The Court's intrusion into the decisions of appeals officers would be contrary to the intention of Parliament. As stated by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada , [1993] 1 S.C.R. 941, at page 963:
A board which is created and protected by a privative clause is the manifestation of the will of Parliament to create a mechanism that provides a speedy and final means of achieving the goal of fair resolution of labour-management disputes. To serve its purpose these decisions must as often as possible be final. If the courts were to refuse to defer to the decisions of the Board, they would negate both the very purpose of the Act and its express provisions.
[32]With regard to the second factor, I believe that the expertise of appeals officers lies in determining whether circumstances in a workplace constitute a danger as defined in the Code. This is a question of mixed fact and law that is fact-intensive. Appeals officers are required to interpret the definition of danger in the Code, and then to assess the circumstances in a workplace, to determine whether they fall within that definition.
[33]Appeals officers are given broad powers of investigation and inquiry under the Code to enable them to fulfill this objective. They have all of the powers, duties and immunity of health and safety officers, as provided for in subsection 145.1(2) [as enacted idem] of the Code. For example, they can enter any workplace to conduct inspections and investigations, collect materials for testing, and compel the production of documents and statements. Appeals officers also have additional powers of inquiry not given to health and safety officers. These powers are listed in section 146.2 [as enacted idem] of the Code and include such powers as the ability to summon and enforce the attendance of witnesses, to administer oaths and affirmations and receive and accept evidence, to examine records and make inquiries, and generally, to determine the conduct of appeal proceedings.
[34]As fact-finding comprises a substantial portion of the analysis, I am of the view that appeals officers have greater expertise than the Court in the determination of whether circumstances in a workplace constitute a danger as defined in the Code. Appeals officers have the advantage of being able to enter a workplace and to assess the conditions within. Given the Court's inability to assess the conditions in a workplace first ha nd, it is not in a position to interfere with the findings made by appeals officers.
[35]The third factor requires the Court to take into account the purpose of the statute. The Code is divided into three distinct Parts that may be construed independently of the others. Part II of the Code concerns the occupational health and safety of workers in the federal jurisdiction. Section 122.1 [as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 1] of the Code provides as follows:
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
[36]The specific purpose of the authority to issue directions under subsection 145(2) of the Code is to authorize immediate action to prevent injuries caused by work duties. Under this provision, the responsible officer must determine whether a situation of danger exists, and if necessary, order to an employer to take immediate steps "to correct the hazard or condition or alter the activity that constitutes the danger" or "protect any person from the danger". As the provision at issue is concerned with the protection of the public, greater deference should be accorded to decisions of appeals officers (Pezim , supra).
[37]The fourth factor, the nature of the problem, involves the determination of whether the hazard, condition or activity in a workplace constitutes a danger within the meaning in the Code. As stated above, this is a question of mixed fact and law that is fact-intensive. Appeals officers are required to interpret the definition of danger in the Code, and then to assess the circumstances in a workplace to determine whether they fall within that definition. I cannot accept the applicants' assertion that this is a pure question of law. Although app eals officers are required to interpret the definition of danger as it exists in the Code, this cannot be done in a vacuum. It is also necessary that a factual inquiry be undertaken with regard to the specific circumstances in a workplace to determine whether they fall within the definition of danger in the Code.
[38]An application of the factors in the pragmatic and functional approach suggests that generally considerable deference should be given to decisions of appeals officers. In my opinion, when reviewing the decisions of appeals officers, the Court should adopt a standard of patent unreasonableness.
[39]However, this case is unique in that the amendments to the Code in September 2000 also introduced a new definition of danger and this is the first time that a court has been asked to review the interpretation that appeals officers have given to the new definition of danger. This suggests that the nature of the problem is more law-intensive, as the Court is required to assess the appeals officer's interpretation of the new definition of danger. In fact, all of the applicants' submissions are centred around t he appeals officer's interpretation of the new definition of danger; the applicants have not challenged any of the appeals officer's findings of fact.
[40]I agree that for the purposes of this case alone, the nature of the problem is more law-intensive. Yet, this does not mean that the Court should adopt the standard of correctness that is advocated by the applicants. The appeals officer is a specialized decision maker, and the Supreme Court of Canada has held that when considering decisions of specialized tribunals, and more particularly in the context of labour relations where the decision is protected by a broad privative clause, deference extends both to the determination on the facts and the interpretation of the law. In Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, McLachlin J. held at page 669:
Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere.
[41]Nevertheless, the Court's analysis will have a precedential value on the decisions o f other appeals officers which may ultimately have an effect on the health and safety of employees. This suggests that more scrutiny should be given to the decision of the appeals officer in the present case.
[42]For these reasons, I am of the view that the Court should undergo "significant searching or testing" when reviewing the decision of the appeals officer. As such, the applicable standard in the present case is reasonableness simpliciter .
Application to the appeals officer's decision
| (a) What reasons did the appeals officer give for his decision? |
[43]The safety officer had issued his directions pursuant to paragraphs 145(2)(a) and (b) of the Code on the ground that all law enforcement activity conducted by park wardens without a sidearm as standard equipment was dangerous because human behaviour was unpredictable and park wardens might need to apply lethal force with a sidearm. In other words, park wardens engaged in law enforcement activities were exposed to risks that had the potential to cause injury.
[44]The appeals officer agreed with the safety officer that park wardens are subject to increased risks because of their secondary responsibility in responding to criminal matters. Given the number and variety of law enforcement activities that park wardens are involved in, there will be times when it will be impossible for them to retreat from the scene and reposition in order to evaluate the proper course of action to be taken. In some situations, they may be at risk of grievous bodily harm or death.
[45]Notwithstanding, the appeals officer set aside the directions of the safety officer because he was of the opinion that the safety officer had confused risk with danger and that the safety officer had conducted an investigation which was largely a paper exercise. According to the appeals officer, the safety officer's decision was based on the hypothetical po ssibility that injury might occur since there was no factual basis to support his finding of the existence of danger as defined by the Code for Mr. Martin or for any other park warden throughout the national parks.
| (b) Do these reasons support the decision? |
[46]In Law Society of New Brunswick, supra, the Supreme Court of Canada affirmed that where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. When reviewing a decision, it is not necessary that every element of the decision be reasonable, so long as the reasons as a whole are supported by the decision. As stated by the Court at paragraph 56:
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[47]In the case at bar, applying a somewhat probing examination to the appeals officer's analysis and decision, taken as a whole, I am satisfied that the reasons are tenable and it can not be said that they do not support the decision. While I do not necessarily agree with every element of the appeals officer's reasoning, I do not believe that the error identified affects the decision as a whole for the following reasons.
[48]In order to understand the appeals officer's decision , it is necessary to consider the definition of danger as it had existed prior to September 2000, and to determine the difference between the "old" and the "new" definition of danger, keeping in mind the modern approach to interpretation which the Supreme Court of Canada has recently confirmed to be the correct approach to statutory interpretation. In R. v. Jarvis, [2002] 3 S.C.R. 757, Major and Iacobucci JJ. stated at paragraph 77:
. . . one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute.
[49]In the pre-amended Code, the definition of danger read as follows [s. 122(1) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 1)]:
122. (1) . . .
| "danger" means any hazard or condition that could reasonably be expected to cause injury or illnes s to a person exposed thereto before the hazard or condition can be corrected. |
[50]The concept of danger as it existed in the pre-amended Code was not intended to deal with danger in the broadest sense of the word. What distinguished a danger within the meaning of the legislation from a danger in the general sense of the term was its immediate nature. In order to constitute danger as defined in the legislation, the hazard or condition must have been perceived to be immediate and real. Accordingly, hypothetical or speculative risks were not to be considered (Pratt and Gray Coach Lines Limited (1988), 1 C.L.R.B.R. (2d) 310 (C.L.R.B.)). The danger must also have been present at the time of the health and safety officer's investigation (Canada (Attorney General) v. Bonfa (1990), 73 D.L.R. (4th) 364 (F.C.A.)).
[51]The "new" definition of "danger", as it currently exists in su bsection 122(1) [as am. by S.C. 2000, c. 20, s. 2] of the Code, provides as follows:
122. (1) . . .
| "danger" means any existing or potential hazard or condition or any current or future activity that could reasonab ly be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system; |
[52]The distinction between the old and new definition of "danger" was explained by the same appeals officer (Mr. Cadieux) [at paragraph 17-19] in the case of Welbourne and Canadian Pacific Railway Co., [2001] C.L.C.A.O.D. No. 9 (QL), as follows.
[53]The current definition of "danger" sets out to improve the definiti on of "danger" found in the pre-amended Code, which was believed to be too restrictive to protect the health and safety of employees. Pursuant to the jurisprudence developed around the definition of danger in the pre-amended Code, the danger had to be imme diate and present at the time of the safety officer's investigation. The new definition broadens the concept of danger to allow for potential hazards or conditions or future activities to be taken into account. Therefore, the safety officer can look beyond the immediate circumstances that exist at the time of his investigation to determine whether "danger" exists as defined in the Code. However, although the new definition of "danger" allows for a future activity to be taken into consideration, this is not an open-ended expression. The doctrine of reasonable expectation still applies. In order to constitute danger as defined in the Code, it must be reasonable to expect that th e prospective hazard, condition or activity will cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity modified. Therefore, although the danger can be prospective, the doctrine of reasonable expectation still excludes hypothetical or speculative situations.
[54]This interpretation of the new definition of "danger" has been adopted and applied by other appeals officers in subsequent cases (Abood and Air Canada , [2003] C.L.C.A.O.D. No. 2 (QL); Canada (Correctional Service) and Schellenberg, [2002] C.L.C.A.O.D. No. 6 (QL); International Longshore and Warehouse Union and Pacific Coast Terminals Co., [2002] C.L.C.A.O.D. No. 16 (QL); Bouchard and Canada (Correctional Service), [2001] C.L.C.A.O.D. No. 28 (QL)).
[55]I agree with the above analysis made by Mr. Cadieux in Welbourne, supra. To paraphrase, the new definition of "danger" in the Code makes it clear that any potential hazard or condition or future activity can constitute a danger. This means that a safety officer can look beyond the immediate circumstances that exist at the time of his investigation to determine whether "danger" exists as defined in the Code.
[56]Furthermore, it is evident to me that the amended definition still encompasses the concept of reasonable expectation which excludes speculative situations: the provision specifically provides that the "future activity that could reasonably be expected to cause injury or illness to [the] person exposed" [underlining added]. This requires evidence and obliges the safety officer to perform an objective analysis of a particular situation.
[57]I agree with the appeals officer that in the absence of specific evidence indicating when grievous bodily harm or death could reasonably occur to a park warden performing law enforcement activity, a safety officer would have to conclude on the absence of danger since he would be faced strictly with a hypothetical or speculative situation.
[58]However, the new definition also clearly states that a hazard, condition or activity could constitute a danger "whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity" [underlining added]. As such, contrary to what was indicated by the appeals officer, I am of the view that it is not necessary that there be a reasonable expectation that the injury o r illness will occur immediately upon exposure to the activity in order to constitute danger within the meaning in the Code.
[59]Nevertheless, in my opinion, the new definition still requires an impending element because the injury or illness has to occur "before the hazard or condition can be corrected, or the activity altered".
[60]Therefore, to summarize, I believe that the appeals officer imposed an unnecessary condition in requiring that there be a reasonable expectation that the injury or illness occur immediately after the exposure to the activity. Yet, this error in my opinion did not affect his decision as a whole. The basis of the appeals officer's decision was that there was no danger within the meaning in the Code because the danger in this case was entirely hypothetical and speculative , Hence, in my view, the appeals officer would have still reached the same conclusion regardless of the error.
[61]The applicants wish that this Court adopt a generous interpretation of the definition of "danger" as it best ensures the goal of protecting the public over other interests. While I recognize that narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's publ ic welfare objectives are to be avoided, Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (C.A.), I believe the new definition of "danger" has to be read in context, taking into account the major repercussions that can be caused by a finding of danger.
[62]A direction under subsection 145(2) of the Code is a specialized instrument offering enormous powers to a safety officer -- sufficient in appropriate circumstances to shut down a company or cause cessation of a nationa l activity.
[63]Therefore, in determining whether law enforcement activity without a sidearm constitutes a danger to park wardens, it is necessary to consider both the likelihood that the activity will cause injury, and the likelihood that the injury will arise before the law enforcement activity is altered. I agree with the respondent that the ability of park wardens to alter the law enforcement activity itself by the exercise of their good judgment, guided by training, is fundamentally important in the assessment of the likelihood of death or grievous bodily harm.
[64]The safety officer expressed the view that danger existed because park wardens may find themselves at risk of grievous bodily harm or death, and are not provided with the necessary personal protective equipment, i.e. a sidearm. This conclusion is not founded on any specific set of facts but rests essentially on the general job description of park wardens. In effect, the complaint is that a park warden might at some indeterminate future point, need to apply lethal force with a sidearm.
[65]This fails to consider whether it is likely that such a risk would present itself and whether a sidearm would be of assistance in reducing this risk. If the mere presence of a risk in a job description is sufficient for a safety officer to make a finding of danger, then directions under subsection 145(2) of the Code would have to be issued for every job which entailed the same element of risk. I do not think that such a result was intended by the legislator.
[66]I fully agree with the conclusion expressed by the appeals officer that the determination of what level of law enforcement involvement and what specific protective measure should be recommended for each and every park warden is a matter of risk analysis and control. It is not helpful to declare "danger" as defined in the Code in the absence of evidence that would establish it.
[67]In summary, applying a somewhat probing examination of the decision of the appeals officer, I find that the reasons given, taken as a whole, are tenable and that the mistake that he made when interpreting the new definition of danger does not affect his decision as a whole.
Mootness
[68]The respondent submits that this case is moot as law enforcement activity as it existed at the time of the complaint no longer exists. After this complaint was filed, law enforcement by park wardens changed with the introduction of Guidelines for Risk Mitigation. Furthermore, should park wardens return to law enforcement, such duties will be further changed by the evolution of national law enforcement policy as influenced by the judgment of the appeals officer and the completion of a risk assessment.
[69]In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada outlined a two-step approach that is to be used in the determination of whether a case is moot. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.
[70]While it is possible that the guidelines may have changed the law enforcement by park wardens, they still will have to apply the new definition of "danger" in the future. Furthermore, this case sets out the standard of review that is to be applied to the deci sions of appeals officers under the amended Code. Thus, I disagree with the respondent that this case has become academic.
[71]For all these reasons, this application for judicial review is dismissed with costs.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed with costs.