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A-424-82
Bell Canada (Applicant) v.
Canada Labour Relations Board and Gaétan Fro- ment (Respondents)
Court of Appeal, Pratte, Le Dain JJ. and Lalande D.J.—Montreal, May 30; Ottawa, June 16, 1983.
Labour relations — Refusal to work based on danger to health or safety — Suspension — Board allowing complaint because penalty imposed for acting in accordance with s. 82.1 of the Code — Issue being whether employee had reasonable cause to believe condition on a given day at a given place constituting imminent danger to health or safety.
Judicial review — Applications to review — Whether denial of natural justice — Presiding Board member not biased — Board right in not admitting in evidence decision of safety officer on similar case involving respondent employee — Board exceeded jurisdiction in making finding on danger based on conditions at different places where work to have been done over certain period — Application allowed — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 82.1 (as added by S.C. 1977-78, c. 27, s. 28), 96.1, 96.3 (as added idem, s. 33), 97(1)(d) (as am. idem, s. 34) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The respondent Bell Canada employee, assigned to install telephone cables in a remote area, refused to work because he felt it was dangerous to work there alone. His employer sus pended him for insubordination after a safety officer found that on the day in question, there was in that place no condition which would constitute an imminent danger to his health or safety. The Canada Labour Relations Board allowed the employee's complaint that he had been suspended for having exercised his right under subsection 82.1(1) of the Canada Labour Code to refuse to work in a place he had cause to believe was dangerous.
The only serious allegation the applicant is making against the Board is that it gave such an unreasonable interpretation of subsection 82.1(1) that it decided an issue other than the one before it, thus exceeding its jurisdiction.
Held, the application should be allowed. Each case being different, the Board was justified in not admitting in evidence a later decision of a safety officer on a similar case involving the respondent employee. The allegation that the presiding Board member was biased is totally unfounded. In interpreting section 82.1 as allowing an employee to refuse to work in a place that does not present any danger because he anticipates that he will later be called upon to work in another place that he considers dangerous, the Board decided a question other than the one remitted to it, thereby exceeding its jurisdiction.
CASE JUDICIALLY CONSIDERED
APPLIED:
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227.
COUNSEL:
Roy L. Heenan for applicant.
Louis Le Bel for respondent C.L.R.B.
Janet Cleveland for respondents Gaétan Fro-
ment and the Communications Workers of
Canada.
SOLICITORS:
Heenan, Blaikie, Jolin, Potvin, Trépanier, Cobbett, Montreal, for applicant.
Grondin, Le Bel, Poudrier, Isabel, Morin & Gagnon, Quebec City, for respondent C.L.R.B.
Rivest, Castiglio, Castiglio, LeBel & Schmidt, Montreal, for respondents Gaétan Froment and the Communications Workers of Canada.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: The applicant is asking that a deci sion of the Canada Labour Relations Board upholding a complaint that respondent Froment had made against it under section 96.1 of the Canada Labour Code [R.S.C. 1970, c. L-1, as added by S.C. 1977-78, c. 27, s. 33] be set aside under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10].
In order to understand the case it is necessary to bear in mind at least some of the provisions of sections 82.1, 96.1 and paragraph 97(1)(d) of the Code. Subsection 82.1(1) gives every employee having reasonable cause to believe that a particu lar type of work constitutes an imminent danger to his own safety or health the right to refuse to do that work.' Furthermore, under paragraph
' Subsection 82.1(1) reads as follows [as added by S.C. 1977-78, c. 27, s. 28]:
82.1 (1) Where a person employed upon or in connection with the operation of any federal work, undertaking or business has reasonable cause to believe that
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97(1)(d), it is an offence for an employer to punish an employee because the latter has exercised his right under section 82.1 to refuse to perform dan gerous work. 2 Section 96.1, finally, allows an employee to make a complaint to the Board of an alleged contravention of paragraph 97(1)(d) by his employer; if the Board finds the complaint to be justified, it may make any of the orders authorized under section 96.3. 3
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(a) the use or operation of a machine, device or thing would constitute an imminent danger to the safety or health of himself or another employee, or
(b) a condition exists in any place that would constitute an imminent danger to his own safety or health,
that person may refuse to use or operate the machine, device or thing or to work in the place.
The rest of section 82.1 may be summarized as follows: an employee who exercises his right under subsection 82.1(1) and refuses to work must forthwith report the circumstances of the matter to his employer, who must investigate immediately; if, following such investigation, the employee is not satisfied with the steps taken by the employer, he has the right to continue to refuse to work; the matter is then referred to a safety officer, who must decide whether there is an imminent danger to the health or safety of the employee, and if he decides that there is, he must give such directions as he considers appropriate to eliminate the danger; if the safety officer decides that there is no imminent danger to the employee, the latter must return to work, and if he decides that there is an imminent danger, the employee may refuse to work until such time as the employer has eliminated the danger; in all cases, however, the safety officer's decision may be referred to the Canada Labour Rela tions Board, which has jurisdiction to determine in the last resort whether there is an imminent danger to the worker and, if so, to give the employer the appropriate directions to elimi nate the danger. It should be added, finally, that subsection 82.1(12) states that a particular condition or circumstance in a place where an employee is working does not constitute an imminent danger to the health or safety of that employee within the meaning of section 82.1 if the employee would normally in that particular occupation or in the course of his employment work in a place in that condition or circumstance.
2 This provision reads as follows [as am. by S.C. 1977-78, c. 27, s. 34]:
97. (1) An employer or any person in charge of the operation of any federal work, undertaking or business is guilty of an offence who
(d) because a person employed by him has acted in accordance with section 82.1, suspends, discharges or imposes any financial or other penalty on that person, including the refusal to pay him remuneration in respect of any period of time that he would, if he were not acting in accordance with section 82.1, have been working, or takes
Respondent Froment has been in applicant's employ since 1976. His work consists in splicing telephone cables, both underground and aerial cables. On November 24, 1980 he was assigned to work in the St -Côme area, about fifteen kilometres from the City of Joliette, where an aerial tele phone line was to be installed along a route from a point designated by the letters D.M.S. 4 to a cross roads and from there to a ski hill located about five miles further on. This work was to have been terminated on December 15. On November 24 Froment went to the site to prepare his work by placing the telephone cables in the poles located between point D.M.S. and the crossroads. On the morning of November 27 everything was ready and the respondent was in a position to begin splicing the telephone cables when he asked to see his foreman. The latter went to the site. After setting out several other grievances, the respondent told him that he felt it was dangerous to work alone in such an isolated place and asked to be given a work companion. The foreman refused and told the respondent that he was free to go home if he was not satisfied. The respondent demanded the right to get in touch with a representative of his union. When this in turn was refused the respond-
any other disciplinary action against such person, or threatens to take any action mentioned in this paragraph against such person ....
3 This section reads as follows [as added by S.C. 1977-78, c. 27, s. 33]:
96.3 Where, under section 96.2, the Board determines that an employee or a person acting on behalf of an employer has contravened paragraph 97(1)(d), the Board may, by order, require the employer or the person acting on behalf of an employer to comply with that paragraph and may, where applicable, by order, require the employer to
(a) permit to return to the duties of his employment any person employed by the employer who has been affected by that contravention;
(b) reinstate any former employee affected by that contra vention as an employee of the employer;
(c) pay to any employee or former employee affected by that contravention compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that contravention, have been paid by the employer to that employee or former employee; and
(d) rescind any disciplinary action taken in respect of and pay compensation to any employee affected by that contra vention, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer.
4 Digital Multiple System.
ent wrote the following note, which he gave to the foreman before leaving his work:
[TRANSLATION] I hereby give you notice that I consider it unsafe to work here in St -Côme (Chemin Versaille (Lac Clair) Chemin de la Ferme) alone and that there should be at least two of us.
Mr. Mantha you are suspending me even after I asked you to
meet my union steward.
You answered by telling me to go meet him.
Gaétan Froment.
The following day, November 28, the foreman got in touch with the respondent and asked him to return to work, to no avail. The matter was then referred to a safety officer pursuant to section 82.1 of the Code. The latter came to the conclusion, on December 2, 1980, that no condition existed in the place in which the respondent was to have worked on November 27, 1980 that would constitute an imminent danger to his health or safety. On December 4, 1980 the applicant notified the respondent that he had been suspended for insubordination from November 27 to December 3, 1980. It is this suspension that was the basis for the complaint which the Board allowed. In this complaint respondent Froment alleged that the applicant had suspended him because on Novem- ber 27, 1980 he had exercised his right under subsection 82.1(1) to refuse to work in a place he had cause to believe was dangerous.
The applicant maintained that in rendering the decision a quo the Board failed to observe the principles of natural justice and exceeded its jurisdiction. 5
I. The principles of natural justice.
Counsel for the applicant first maintained that the Board had violated the audi alteram partem rule. He also argued that the Board member who presided over the hearing had by his conduct shown that he was biased in favour of respondent Froment, but this allegation seems entirely unfounded to me and I do not intend to say anything further about it.
According to counsel for the applicant, the Board violated the audi alteram partem rule in refusing to admit in evidence a decision that a
5 These are the two cases where section 122 of the Code allows the Court to review the Board's decisions.
safety officer had made under section 82.1 of the Code. In that decision, rendered on January 14, 1981 following another refusal by respondent Fro- ment to work in an isolated place, the safety officer apparently found that this refusal to work was not justified under subsection 82.1(12) because it was normal for a Bell Canada employee responsible for splicing telephone cables to have to work in isolated places. Counsel for the applicant maintained that in refusing to admit this decision in evidence the Board deprived his client of the right to present a peremptory defence.
Even if I assume that the rejection of evidence found to be inadmissible can constitute a violation of the audi alteram partem rule, this is not the case here. In order to realize this, it is necessary to understand that the issue before the Board was not whether the place where Mr. Froment was to have worked on November 27, 1980 in fact constituted a danger to his health or safety. That issue had already been decided by the safety officer on December 2, 1980. The Board had to decide whether the applicant had suspended respondent because he had exercised his right under subsec tion 82.1(1). More precisely, since it was common ground that applicant had suspended the respond ent because the latter had refused to work on November 27, 1980, maintaining that his safety was in danger, the Board had to decide whether on November 27 the respondent had reasonable cause to believe that a condition existed in the place where he was to have worked that would constitute an imminent danger to his safety or health. I do not see how a decision that was not rendered until January 1981, following a refusal to work in another place, could have helped the Board answer this question. I am therefore of the view that the Board was justified in finding that the decision which the applicant wished to adduce in evidence was not relevant to the problem the Board had to resolve. Moreover, even if that decision could have been considered relevant, it seems certain to me that it would not have provided an answer to the question before the Board and that in refusing to admit it in evidence, the latter did not, in my view, violate the audi alteram partem rule. Despite this refusal it was still open to the applicant to prove, as it tried to do, that respondent Froment had no reasonable cause to believe that a condition existed
at the place where he was to have worked that would constitute an imminent danger within the meaning of section 82.1.
2. Jurisdiction.
It is clear that under section 96.1, the Board had jurisdiction to hear and determine the respondent's complaint. Moreover, the applicant does not dis pute this. What it is alleging or, more precisely, the only serious allegation it is making against the Board in this regard is that the latter gave subsec tion 82.1(1) such an unreasonable interpretation that it was led to decide an issue other than the one before it (Canadian Union of Public Employees Local 963 v. New Brusnwick Liquor Corporation, [1979] 2 S.C.R. 227, at page 237).
The only issue that was really before the Board was whether when respondent Froment refused to work in a place he felt was too isolated on Novem- ber 27, 1980 he had reasonable cause to believe that a condition existed at that place that would constitute an imminent danger to his safety or health. The Board answered this question in the affirmative. It did so, however, not, as might have been expected, because it was of the view that the place where the respondent was to have worked on November 27, 1980 (situated between point D.M.S. and the crossroads) presented a danger. The Board stated in effect that it was common ground that this place did not present any danger; and it seems clear, although the Board did not say anything on this point, that it was also of the view that respondent Froment did not have reasonable cause to believe that this place was dangerous. It is clear from the decision a quo that the Board was of the view that on November 27, 1980 the respondent not only refused to work where he was to have worked that day (that is, between point D.M.S. and the crossroads) but also refused to do any of the work to which he had been assigned a few days earlier, work which was to have con tinued until December 15, 1980 and have been performed not only between point D.M.S. and the crossroads but also over the distance of close to five miles separating the crossroads from the ski hill. The Board therefore asked itself whether the
respondent could reasonably have believed that the places where all this work was to have been per formed constituted a danger to his safety. It is because the Board answered the question thus posed in the affirmative that it decided as it did. In so doing the Board, in my view, so misinterpreted paragraph 82.1(1)(b) that it decided a question other than the one remitted to it. This paragraph does not allow an employee to refuse to be assigned to work only part of which is to be performed in a dangerous place; it only allows an employee to refuse to work in a place that he has reasonable cause to believe is dangerous. Conse quently, if the work to which an employee is assigned is to be performed in different places, section 82.1 does not allow him to refuse to work in a place that does not present any danger because he anticipates that he will later be called upon to work in another place that he considers dangerous.
For these reasons I am therefore of the view that the Board exceeded its jurisdiction in rendering the decision a quo. I would therefore allow the application, set aside that decision and refer the matter back to the Board to be decided by it on the assumption that the question it must answer is whether respondent Froment had reasonable cause to believe that a condition existed in the place where he was to have worked on November 27, 1980 that would constitute an imminent danger to his safety or health.
LE DAIN J.: I concur.
LALANDE D.J.: I concur in these reasons and in the order.
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