A-524-86
J. Bidulka, B. Bobowsky, W. Dobney, D. R. John-
ston, W. Koltok, A. Lyshak, L. McAllister, J.
Murphy, D. Philibert and C. Van Den Boogaard
(Applicants)
v.
Treasury Board (Agriculture Canada) and Public
Service Staff Relations Board (Respondents)
INDEXED AS: BIDULKA V. CANADA (TREASURY BOARD)
Court of Appeal, Thurlow C.J., Pratte and Heald
JJ.—Calgary, February 10 and 12; Ottawa,
March 30, 1987.
Labour relations — Occupational safety and health —
Strike — Meat inspectors required to cross picket lines to
perform duty — Violence — Inspectors refusing to work,
claiming work place unsafe — Claims rejected by safety
officers on ground at time of investigation, picket lines could
be crossed safely, therefore no condition existed at work place
which constituted danger within meaning of Code s. 85 —
Application to review P.S.S.R.B. decision upholding safety
officers' findings — Previous situation not relevant to deter
mination whether danger exists at time of safety officers'
investigation — Threats by strikers, outside place of work, not
"danger" of kind referred to in Code ss. 85 and 86 —
Application to review dismissed — Canada Labour Code,
R.S.C. 1970, c. L-1 (as am. by S.C. 1984, c. 39, s. 20), ss.
79(1), 79.1, 81, 85(1),(6),(7),(8), 86, 87, 102(2), 103(1) —
Financial Administration Act, R.S.C. 1970, c. F-10, s. 7 (as
am. by S.C. 1984, c. 29, s. 41(2)) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
Public service — Labour relations — Refusal to work on
ground work place unsafe — Meat inspectors employed by
Department of Agriculture required to cross picket lines to
provide services at strike-bound plant — Violence on picket
lines — Decisions by safety officers no danger since at time of
investigation, picket lines could be crossed safely — Applica
tion to review P.S.S.R.B. decision confirming safety officers'
decisions — Application dismissed — No error of law —
Violence prior to investigation not condition existing at time of
investigation — Board not required to give reasons for decision
— Canada Labour Code, R.S.C. 1970, c. L-1 (as am. by S.C.
1984, c. 39, s. 20), ss. 85, 86.
The applicants worked as meat inspectors for the federal
Department of Agriculture at a strike-bound plant operated by
Gainers Inc. They were required to cross picket lines in order to
do their work. The strike degenerated into a violent labour
confrontation. Invoking subsection 85(1) of the Canada Labour
Code, the inspectors refused to perform their duties on the
ground that it was not safe for them to work at the plant during
the strike. Their claims were rejected by the safety officers who
determined that, at the time of their investigation, the picket
lines could be crossed safely. Accordingly, there did not exist,
in the applicants' work place, a condition that constituted a
danger to them and they were not entitled, under section 85 of
the Code, to continue to refuse to work. The decisions were
referred to the Public Service Staff Relations Board pursuant
to subsection 86(5) of the Code. This is an application to review
and set aside the decision of the Board which upheld the safety
officers' findings.
Held (Thurlow C.J. dissenting in part), the application
should be dismissed.
Per Pratte J. (Heald J. concurring): The task of a safety
officer under paragraph 86(2)(b) of the Code is to determine
whether, at the time of the investigation, a "condition exists ...
that constitutes a danger to the employee". There had been
violence on the picket lines prior to the investigation. However,
at the time of the investigation, the circumstances had changed.
Because of that change, the safety officers could not reasonably
anticipate that violence would recur. The Board was right in
concluding that the safety officers had approached their investi
gation in a proper manner.
The safety officers were correct in not taking into account
the applicants' fears that they could be attacked, outside of
their hours of work, by the strikers. In order to determine what
kind of dangers may entitle an employee to refuse to work,
regard must be had to the language of sections 85 and 86 of the
Code. Under those provisions, the only dangers that may be the
object of an investigation are the dangers or conditions that
may exist at the place where the employee is required to work.
The danger of being the victims of the revenge of strikers arose
because there were, outside of the applicants' work place,
persons suspected of having criminal intentions. That danger is
not of the kind referred to in sections 85 and 86.
Finally, the Board's failure to give reasons with respect to
one of the six safety officers' decisions does not vitiate its own
decision: no legal provision requires the Board to give reasons in
support of its decisions.
Per Thurlow C.J. (dissenting in part): The Board misdirected
itself when it resolved the question of the existence of danger on
the basis of the situation as it appeared to the safety officers at
the time of their investigation rather than at time the Board
was making its decision. The Board found that the adverse
health effects experienced by the applicants were brought about
by stress generated by crossing the picket lines. By the time the
Board's inquiry was made and its decision given, the deleterious
effects had become apparent. Those effects, which resulted
from a condition in the applicants' work place, established that
there was a "danger" there within the meaning of that word as
defined in subsection 79(1) of the Code: "any hazard or
condition that could reasonably be expected to cause injury or
illness to a person exposed thereto before the hazard or condi
tion is corrected". Except for the decisions on two of the
refusals, the safety officers' decisions, that danger did not exist,
should not have been confirmed by the Board. The Board
should have ordered that the employer comply with its own
policy as to the provision of meat inspection services at a
strike-bound plant.
CASE JUDICIALLY CONSIDERED
CONSIDERED:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684.
COUNSEL:
Barrie Chivers and June M. Ross for
applicants.
Harvey A. Newman for respondent Treasury
Board.
SOLICITORS:
Chivers-Greckol, Edmonton, for applicants.
Deputy Attorney General of Canada for
respondent Treasury Board.
The following are the reasons for judgment
rendered in English by
THURLOW C.J. (dissenting in part): This is an
application under section 28 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] to review
and set aside the decision of the Public Service
Staff Relations Board on a number of references
under subsection 86(5) of the Canada Labour
Code [R.S.C. 1970, c. L-1 (as am. by S.C. 1984, c.
39, s. 20)]. The decision confirmed several deci
sions of safety officers made between June 6 and
July 2, 1986, under subsection 86(2) of the Code
in all of which the safety officer held that at the
time of his investigation a condition that constitut
ed a danger to an employee did not exist in the
employee's work place and that in consequence the
employee was not entitled under section 85 of Part
IV of the Code to continue to refuse to work in
that place.
The relevant statutory provisions are set out in a
footnote and an appendix to the reasons for judg
ment of Mr. Justice Pratte and need not be repeat-
ed. Under those contained in Part IV of the
Canada Labour Code, an employee may refuse to
work in a place in which a condition exists that
constitutes a danger to him. If the matter cannot
be settled between him and his employer they can
so notify a safety officer who must then investigate
it in their presence and decide whether or not such
a condition of danger to the employee exists. On a
negative decision being given, the employee may
require the safety officer to refer the decision to
the Board, in this case, by virtue of an amendment
to section 7 of the Financial Administration Act
[R.S.C. 1970, c. F-10 (as am. by S.C. 1984, c. 39,
s. 41)], the Public Service Staff Relations Board.
On such a reference being made, the Board is
required, by subsection 87(1) [as am. by S.C.
1984, c. 39, s. 20], without delay and in a sum
mary way, to
87. (1) ... inquire into the circumstances of the decision
and the reasons therefor and may
(a) confirm the decision; or
(b) give any direction that it considers appropriate in respect
of the machine, thing or place in respect of which the
decision was made that a safety officer is required or entitled
to give under subsection 102(2).
Thus what the safety officer may do and what the
Board may do, in the case of a positive decision by
either, are the same. The subsection provides [as
am. by S.C. 1984, c. 39, s. 20]:
1.02....
(2) Where a safety officer considers that the use or opera
tion of a machine or thing or a condition in any place consti
tutes a danger to an employee while at work,
(a) the safety officer shall notify the employer of the danger
and issue directions in writing to the employer directing him
immediately or within such period of time as the safety
officer specifies
(i) to take measures for guarding the source of danger, or
(ii) to protect any person from the danger; and
(b) the safety officer may, if he considers that the danger
cannot otherwise be guarded or protected against immediate
ly, issue a direction in writing to the employer directing that
the place, machine or thing in respect of which the direction
is made shall not be used or operated until his directions are
complied with, but nothing in this paragraph prevents the
doing of anything necessary for the proper compliance with
the direction.
The effect of these provisions, as I read them, is
to require the safety officer and in turn the Board
to determine the question of danger at the time
when the decision is made and if the decision is
positive to give appropriate directions within the
limits of subsection 102(2). Having regard to the
requirement that the Board make its inquiry and
decision without delay and in a summary way, it is
apparent that it was not intended that there should
be any lengthy separation in time of the respective
decisions. In this case, for reasons explained by the
Board, there was a separation of nearly two
months. However, as will appear, the basic reason
for the employees' refusals, that is to say, the
strike at the Gainers plant to which they were
required to go to perform their duties as govern-
ment-employed meat inspectors and, in the pro
cess, cross picket lines, continued until and after
August 18, 1986, when the Board's decision was
given. By the time the present application was
heard, the strike had been settled.
"Danger" is defined in Part IV of the Code as
meaning "any hazard or condition that could rea
sonably be expected to cause injury or illness to a
person exposed thereto before the hazard or condi
tion can be corrected" [subsection 79(1) (as am.
by S.C. 1984, c. 39, s. 20)].
In the second last paragraph of its reasons,
dated September 30, 1986, the Board said:
77. My role under Part IV of the Canada Labour Code is
limited to reviewing the safety officers' decisions. I have con
cluded that their decisions holding that no danger existed
cannot be faulted. I feel it proper to emphasize, however, that,
in my view, the applicants were genuinely scared, and with
some reason, by the danger of assaults against their families
and themselves outside of working hours. The Department of
Agriculture has adopted a policy, set out in section 1.14.6 of its
Meat Hygiene Manual and quoted above, that enunciates an
intelligent, sensitive approach to the problem of providing meat
inspection services at a strike-bound plant. No evidence was
presented before me that would explain the employer's failure
in this case to comply with its own policy. An order that the
employer comply with its policy was the corrective action
requested by the applicants and I am confident that compliance
would have avoided the tension and bad relations created by the
strike for these employees. However, having found that there
existed no danger within the meaning of Part IV of the Code, I
have no authority to order compliance with the employer's
policy.
In so deciding, the Board, in my opinion, misdi
rected itself as to the time at which the question of
the existence of danger in the work place was to be
resolved by it by treating it on the basis of the
situation as it appeared to the safety officers
rather than at the time the Board was making its
decision.
The strike had been long and bitter and had
been marked by violence both at the picket lines
and elsewhere. In the first week the meat inspec
tors were given safe conduct by the striking Union
to cross the picket line. Thereafter the assurance of
safe conduct was withdrawn, an event which trig
gered the first of the refusals by the meat inspec
tors to work at the Gainers plant. The safety
officer, after an investigation and trial run, decid
ed there was no danger to the meat inspectors. For
a week thereafter, but for some taunting and name
calling by picketers or strikers, there seems to have
been no problem and no danger. But by June 17,
when a violent incident occurred, arrangements
had been made for the meat inspectors to assemble
at a point some distance from the Gainers plant to
be transported by van to the plant. The making of
such arrangements indicates a recognition by their
employer that it was hazardous for them to report
on their own for work at the Gainers plant. The
result of the arrangement, in my view, was to
extend their place of work to include, as well as the
Gainers plant, the assembly point and the route of
the van from it to the Gainers plant. That involved
the crossing of the picket line, an operation which,
following the attack on the van on June 17, was
accomplished with the aid of a police escort. The
crossing of the picket line produced taunts and
threats by the striking plant employees but no
violence to the meat inspectors. On the other hand
they, or some of them, were harassed and threat
ened at home after hours because of their having
continued to cross the picket lines and carry out
their duties, thus enabling the management of the
plant to keep it operating.
I agree with the opinion of Mr. Justice Pratte
that the wording of subsection 85(1) does not
permit the effects of harassment of or threats to
the meat inspectors when they were outside the
place of work, expanded as I think it must be to
the extent I have indicated, to be taken into
account in determining whether a condition of
danger to the health of the inspectors existed in
their work place. But I do not think that concludes
the matter.
In paragraphs 35 and 36 of its reasons the
Board says:
35. An element in all of the refusals to work that are before
me, except for the initial one and Mr. Johnston's (concerning
which no evidence was presented) was the considerable stress
and tension being experienced by the meat inspectors as a result
of the strike. In addition to the actual crossing of the sometimes
violent picket line and the attack on the van on June 17, they
testified about other incidents that had contributed to the
stress. They mentioned taunts, telephone threats at home,
telephone calls they received where the calling party did not
speak, being followed, mysterious cars near their homes, "boy-
cott Gainers" stickers left on their cars. They testified that they
were known to Gainers' strikers, some of whom were their
immediate neighbours. They mentioned the extensive, continual
media coverage of the strike and related violence. They men
tioned that the strike was a constant subject of discussion both
at work and elsewhere. They were concerned for their safety
and their families' safety at home, several of them taking added
security measures at home. The tension thus created, according
to their evidence, manifested itself in different ways. Several of
them testified that they had become jumpy and moody. Some
testified that they were experiencing sleeplessness, nausea,
headaches and intestinal disorders. Some had lost weight,
others had gained weight. Some were drinking or smoking more
than usual. One of the meat inspectors testified that, following
two recent cancer operations, he was under strict doctor's
instructions to quit smoking, but that the tension created by the
strike had caused him to start smoking again. Several of them
stated, either angrily or plaintively, that they could not under
stand why their employer was showing so little concern for their
safety by placing them right in the middle of this violent, bitter
conflict. Several of them consulted their doctors on account of
these stress-related symptoms. Some of them have failed to
report for work on the ground of illness and have applied for
sick leave. The case of Mr. Murphy was mentioned earlier. He
suffered from intermittent claudication, and it was his doctor's
opinion that the stress created by the strike was seriously
increasing the risk of a heart attack and of serious problems
with his leg. The safety officers testified that they were
informed by the inspectors, in general terms only, of the tension
to which they were subject as a result of the strike. [Emphasis
added.]
36. The meat inspectors' union, the Agriculture Union, a com
ponent of the Public Service Alliance of Canada, arranged for
the inspectors to be examined by an experienced forensic
psychiatrist, Dr. J. Hamilton Brooks. Dr. Brooks testified
before me and his five-page medical opinion, with appendices,
was admitted in evidence (Exhibit 61). Dr. Brooks examined
nine of the meat inspectors to see whether there was any
psychiatric disorder caused by the strike or related events. He
concluded that they were all suffering, in varying degrees, from
a condition similar to "post-traumatic stress disorder". He
described this disorder as anxiety resulting from a traumatic
event outside the range of normal human experience. In this
case, the traumatic event was their experience with the strike.
The prognosis, according to Dr. Brooks, was that they would
recover once the strike was settled, although some of their
symptoms might persist. The preferred means to deal with their
stress, he testified, was to remove them from the stress-creating
situation. In cross-examination, he acknowledged that his diag
nosis was a generalized one, based on a composite of the
accounts given to him by the employees and based on the
assumption that what they told him was true. He had had only
a limited time available for consultation with each of the
inspectors. Hospitalization was not indicated for any of them,
he stated. One of the inspectors, in his opinion, was in danger of
a nervous breakdown.
In paragraph 64:
... there is no reason to doubt the evidence of the employee
witnesses called by counsel for the applicants concerning the
tension and fears created for them by the strike and the related
violence. Having seen and heard them testify, I am satisfied
that the fears they described and the physical and emotional
symptoms to which they testified were genuine and were the
results of the strike.
This, as I read it, means that the Board accepted
the evidence and found that the deleterious effects
on their health experienced by the meat inspectors
was brought about by stress generated by crossing
the picket lines and the attack on the van and was
contributed to by harassment at the hands of
strikers or their sympathizers when not at their
place of work. The requirement that they cross the
picket lines which was, in my view, a condition in
their place of work was thus at least one of the
causes of the stress and the adverse health effects
which they incurred. The vulnerability of the van
to the attack on June 17 was also a condition of
their place of work. By the time the Board's
inquiry was made and its decision given, the
adverse health effects had become apparent,
whether or not they were apparent when the safety
officers' decisions were made. The adverse health
effects, resulting at least to some extent, as found
by the Board, from a condition of the work place,
in my view, established that there was a danger
there within the meaning of the definition. In that
situation the decisions of the safety officers that
danger did not exist (other than the decision in
respect of the first refusal and that in respect of
the Johnston refusal), should not have been con
firmed. In my opinion, the Board should have
given a direction as paragraph 77 of its reasons,
which I have quoted earlier, indicates it would
have given had it not considered it beyond its
authority to do so.
I would set aside the confirmation by the Board
of the decisions of the safety officers other than
that in respect of the first refusal and that in
respect of the Johnston refusal.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: The applicants seek the review,
under section 28 of the Federal Court Act, of a
decision pronounced by the Public Service Staff
Relations Board on a reference made pursuant to
subsection 86(5) of the Canada Labour Code.'
' That subsection is contained in Part IV of the Code that
deals with "Occupational Safety and Health". Those of its
provisions that are relevant to the issue raised by this case are
reproduced in an annex to these reasons.
Part IV of the Canada Labour Code was made applicable to
the public service by S.C. 1984, c. 39, sub. 41(2) (proclaimed in
force on March 31, 1986, by order in council P.C. 1986-429
[S 1 / 8 6-46]) which amended section 7 of the Financial
Administration Act in the following manner:
41....
(2) Section 7 of the said Act is further amended by adding
thereto, immediately after subsection (8) thereof, the follow
ing subsection:
"(8.1) Part IV of the Canada Labour Code applies to
and in respect of the public service and persons employed
in the public service in the same manner and to the same
extent as if the public service were a federal work, under
taking or business referred to in that Part except that, for
the purpose of such application,
(a) any reference in that Part to
(i) "arbitration" shall be read as a reference to
adjudication within the meaning of the Public Service
Staff Relations Act,
(ii) the "Board" shall be read as a reference to the
Public Service Staff Relations Board,
(Continued on next page)
At the relevant times, the applicants were
employed in the public service of Canada. They
worked as meat inspectors for the Department of
Agriculture in Edmonton, Alberta, where they
inspected meat and meat products at a plant oper
ated by Gainers Inc. Their work was done at that
plant rather than on premises under the direct
control of their employer.
On June 1, 1986, approximately 1,100 Gainers'
employees, who were members of the United Food
and Commercial Workers Union, Local 280-P (the
"Union"), went on strike. The plant, however, did
not close. Gainers kept it in operation by replacing
the strikers by management personnel and non
union employees hired for that purpose. The appli
cants, therefore, had to continue to do their work
at the plant and had to cross picket lines. This, at
first, did not cause any serious problem since the
Union had issued safe conducts enabling the meat
inspectors to cross the picket lines without difficul
ty. That situation did not last. The strike quickly
degenerated into what was described as "the most
violent labour confrontation in Alberta since the
1930's". On June 5, the Union notified the meat
inspectors that the safe conducts would no longer
be honoured. In at least six occasions during the
following weeks, the applicants or some of them
invoked subsection 85(1) of the Canada Labour
Code and refused to perform their functions on the
ground that they did not consider it safe to go and
work at the Gainers plant during the strike. In all
those cases, the applicants' claims were rejected by
the employer and by the safety officers who were
seized of those matters; the decisions of the safety
officers were referred to the Public Service Staff
(Continued from previous page)
(iii) a "collective agreement" shall be read as a
reference to a collective agreement within the mean
ing of the Public Service Staff Relations Act, and
(iv) a "trade union" shall be read as a reference to an
employee organization within the meaning of the
Public Service Staff Relations Act;
(b) section 105.8 of that Part does not apply in respect
of the Public Service Staff Relations Board in exercising
or carrying out its powers, duties and functions in
relation to that Part; and
(c) the provisions of the Public Service Staff Relations
Act apply, with such modifications as the circumstances
require, in respect of matters brought before the Public
Service Staff Relations Board pursuant to that Part to
the extent necessary to give effect to that purpose."
Relations Board pursuant to subsection 86(5) of
the Code. All the references were heard together
by the Deputy Chairman of the Board who decid
ed that the safety officers' decisions ought to be
confirmed. That is the decision against which this
section 28 application is directed.
Counsel for the applicants made three attacks
against the decision of the Board. The first one
related to the confirmation by the Board of deci
sions of safety officers made after the applicants
had refused to work because they considered that
it was dangerous for them to cross the picket lines.
The safety officers had determined that there was
no danger because, at the time of their investiga
tion, shortly after the applicants' refusal to go to
work, the picket lines could be crossed safely.
According to counsel, the safety officers should
not have limited themselves to considering the
situation that existed at the time of their investiga
tion; they should also have taken into account the
situation that prevailed earlier, when it was admit
tedly dangerous to cross the picket lines; if they
had, they could not have avoided the conclusion
that it was reasonable to anticipate the repetition
of the violent incidents that had prompted the
applicants' refusal to work. The duty of the safety
officers, under subsection 86(2) of the Code, was
to determine whether there was danger. The word
"danger" is defined in subsection 79(1) as mean
ing "any hazard or condition that could reasonably
be expected to cause injury or illness to a person
exposed thereto" (emphasis added). The safety
officers, said counsel, had given too narrow an
interpretation to the word "danger" in subsection
86(2) and, as a consequence, had unduly limited
their investigation; the Board, in approving their
decisions, had committed the same error.
I do not see merit in that argument. The task of
a safety officer under paragraph 86(2)(b) is clear
ly to determine whether, at the time of the investi
gation, a "condition exists . .. that constitutes a
danger to the employee". The fact that there had
been violence on the picket lines a few days before
the investigation was clearly not a condition that
existed at the time of the investigation of the
safety officers. It would, of course, have been
relevant to the determination that they had to
make if the situation had not changed since those
eruptions of violence. But it was precisely because
they judged that the situation prevailing at the
time of their investigation was different from the
one that had existed earlier that the safety officers
decided as they did. Because of that change, one
could not reasonably anticipate that the future
would be a mere repetition of the past. In my view,
the Board was therefore right in deciding that the
safety officers had approached their investigation
in the correct way.
In order to understand the second argument put
forward on behalf of the applicants, it is necessary
to know that one of the main reasons for the
applicants' refusal to work was their fear that the
strikers and their sympathizers would, outside of
the hours of work, attack them and members of
their families so as to punish them for having
permitted Gainers to continue to operate its plant.
The safety officers did not take those fears into
consideration in determining whether the appli
cants could work without danger because those
fears related to dangers that existed outside of the
work place. Counsel for the applicants submitted
that the Board had erred in law in upholding that
position of the safety officers. He asserted that,
pursuant to section 79.1, the purpose of Part IV of
the Code is "to prevent accidents and injury to
health ... linked with ... employment". He said
that the possibility that the meat inspectors be,
outside of their hours of work, attacked by the
strikers or their sympathizers was a danger that
was clearly linked to the inspectors' employment.
He concluded that that danger should have been
taken into account by the safety officers and that
the Board should have so decided.
Section 79.1 of the Canada Labour Code reads
as follows:
79.1 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.
That section describes the purpose of Part IV. It
does not describe the purpose of each one of the
provisions contained in that Part. Therefore, in
order to determine what kind of dangers may,
under section 85, entitle an employee to refuse to
work and, under section 86, be the object of an
investigation by a safety officer, it is necessary to
look at the language used in those sections rather
than in section 79.1.
The relevant parts of sections 85 and 86 read as
follows:
85. (1) Subject to this section, where an employee while at
work has reasonable cause to believe that
(b) a condition exists in any place that constitutes a danger
to the employee,
the employee may refuse ... to work in that place.
86....
(2) A safety officer shall, on completion of an investigation
made pursuant to subsection (1), decide whether or not
(b) a condition exists in the place in respect of which the
investigation was made that constitutes a danger to the
employee ... [Emphasis added.]
Under these provisions, as I read them, an
employee may refuse to work in a place where a
condition exists that constitutes a danger to him
and the safety officer must determine, when he is
seized of the matter, whether there exists in that
place a condition that constitutes a danger to the
employee. Clearly, therefore, the only dangers that
may be the subject of an investigation under sec
tion 86 are the dangers or conditions that may
exist at the place where the employee is required
to work.
In this case it is said, and that was accepted by
the Board, that the meat inspectors were in danger
of being the victims, outside of the work place, of
the revenge of the strikers and their sympathizers.
Clearly, it was not a condition existing at the place
of work that constituted that danger. On the con
trary, the danger arose because there were, outside
of the place of work, persons who were suspected
of having criminal intentions. That danger, there-
fore, was not a danger of the kind referred to in
sections 85 and 86.
The applicants' last submission related to only
one of the six safety officers' decisions that were
referred to the Board. The only complaint of the
applicants with respect to the Board's confirmation
of that decision was that the Board did not give
any reasons in support of its own decision.
I see no merit in that last submission. In the
absence of a legal provision requiring a tribunal to
give reasons in support of its decisions, those deci
sions are not vitiated by the failure to give
reasons.' This is specially true in a case like this
one where counsel for the applicants did not inti
mate any valid reason why the Board should have
decided differently.
I would dismiss the application.
HEALD J.: I agree.
ANNEX
Relevant provisions of Part IV of the Canada
Labour Code:
PART IV
OCCUPATIONAL SAFETY AND
HEALTH
79. (1) In this Part,
"danger" means any hazard or condition that could reasonably
be expected to cause injury or illness to a person exposed
thereto before the hazard or condition can be corrected;
79.1 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.
81. Every employer shall ensure that the safety and health at
work of every person employed by him is protected.
85. (1) Subject to this section, where an employee while at
work has reasonable cause to believe that
(a) the use or operation of a machine or thing constitutes a
danger to himself or another employee, or
2 See: Northwestern Utilities Ltd. et al. v. City of Edmonton.
[1979] 1 S.C.R. 684, at p. 706.
(b) a condition exists in any place that constitutes a danger
to the employee,
the employee may refuse to use or operate the machine or thing
or to work in that place.
(6) Where an employee refuses to use or operate a machine
or thing or to work in a place pursuant to subsection (1), or is
prevented from acting in accordance with that subsection pur
suant to subsection (4), he shall forthwith report the circum
stances of the matter to his employer and to
(a) a member of the safety and health committee, if any,
established for the work place affected; or
(b) the safety and health representative, if any, appointed for
the work place affected.
(7) An employer shall forthwith on receipt of a report under
subsection (6) investigate the report in the presence of the
employee who made the report and in the presence of
(a) at least one member of the safety and health committee,
if any, to which the report was made under subsection (6)
who does not exercise managerial functions;
(b) the safety and health representative, if any; or
(e) where no safety and health committee or safety and
health representative has been established or appointed for
the work place affected, at least one person selected by the
employee.
(8) Where an employer disputes a report made to him by an
employee pursuant to subsection (6) or where the employer
takes steps to make the machine or thing or the place in respect
of which such report was made safe, and the employee has
reasonable cause to believe that
(a) the use or operation of the machine or thing continues to
constitute a danger to himself or another employee, or
(b) a condition continues to exist in the place that constitutes
a danger to the employees,
the employee may continue to refuse to use or operate the
machine or thing or to work in that place.
86. (1) Where an employee continues to refuse to use or
operate a machine or thing or to work in a place pursuant to
subsection 85(8), the employer and the employee shall each
forthwith notify a safety officer, and the safety officer shall
forthwith, on receipt of either notification, investigate or cause
another safety officer to investigate the matter in the presence
of the employer and the employee or his representative.
(2) A safety officer shall, on completion of an investigation
made pursuant to subsection (1), decide whether or not
(a) the use or operation of the machine or thing in respect of
which the investigation was made constitutes a danger to any
employee, or
(b) a condition exists in the place in respect of which the
investigation was made that constitutes a danger to the
employee referred to in subsection (1),
and he shall forthwith notify the employer and the employee of
his decision.
(3) Prior to the investigation and decision of a safety officer
under this section,
(a) the employer may require that the employee concerned
remain at a safe location near the place in respect of which
the investigation is being made or assign the employee
reasonable alternate work; and
(b) the employer shall not assign any other employee to use
or operate the machine or thing or to work in that place
unless that other employee has been advised of the refusal of
the employee concerned.
(4) Where a safety officer decides that the use or operation
of a machine or thing constitutes a danger to an employee or
that a condition exists in a place that constitutes a danger to an
employee, he shall give such direction under subsection 102(2)
as he considers appropriate, and an employee may continue to
refuse to use or operate the machine or thing or to work in that
place until the direction is complied with or until it is varied or
rescinded under this Part.
(5) Where a safety officer decides that the use or operation
of a machine or thing does not constitute a danger to an
employee or that a condition does not exist in a place that
constitutes a danger to an employee, an employee is not entitled
under section 85 or this section to continue to refuse to use or
operate the machine or thing or to work in that place, but he
may, by notice in writing given within seven days of receiving
notice of the decision of a safety officer, require the safety
officer to refer his decision to the Board, and thereupon the
safety officer shall refer the decision to the Board.
87. (1) Where a decision of a safety officer is referred to the
Board pursuant to subsection 86(5), the Board shall, without
delay and in a summary way, inquire into the circumstances of
the decision and the reasons therefor and may
(a) confirm the decision; or
(b) give any direction that it considers appropriate in respect
of the machine, thing or place in respect of which the
decision was made that a safety officer is required or entitled
to give under subsection 102(2).
(2) Where the Board gives a direction under subsection (1),
it shall cause to be affixed to or near the machine, thing or
place in respect of which the direction is given a notice in the
form approved by the Minister, and no person shall remove the
notice unless authorized by a safety officer or the Board.
(3) Where the Board directs, pursuant to subsection (1),
that a machine, thing or place not be used until its directions
are complied with, the employer shall discontinue the use
thereof, and no person shall use such machine, thing or place
until the directions are complied with, but nothing in this
subsection prevents the doing of anything necessary for the
proper compliance therewith.
102....
(2) Where a safety officer considers that the use or opera
tion of a machine or thing or a condition in any place consti
tutes a danger to an employee while at work,
(a) the safety officer shall notify the employer of the danger
and issue directions in writing to the employer directing him
immediately or within such period of time as the safety
officer specifies
(i) to take measures for guarding the source of danger, or
(ii) to protect any person from the danger; and
(b) the safety officer may, if he considers that the danger
cannot otherwise be guarded or protected against immediate
ly, issue a direction in writing to the employer directing that
the place, machine or thing in respect of which the direction
is made shall not be used or operated until his directions are
complied with, but nothing in this paragraph prevents the
doing of anything necessary for the proper compliance with
the direction.
103. (1) Any employer, employee or trade union that consid
ers himself or itself aggrieved by any direction issued by a
safety officer under this Part may, within fourteen days of the
date of the direction, request that a regional safety officer for
the region in which the place, machine or thing in respect of
which the direction was issued is situated, review the direction.
(2) The regional safety officer may require that an oral
request for a review under subsection (I) be made as well in
writing.
(3) The regional safety officer shall in a summary way
inquire into the circumstances of the direction to be reviewed
and the need therefor and may vary, rescind or confirm the
direction and thereupon shall in writing notify the employee,
employer or trade union concerned of his decision.
(4) A request for a review of a direction under this section
shall not operate as a stay of the direction.
(5) Subsection (I) does not apply in respect of a direction of
a safety officer that is based on a decision of the safety officer
that has been referred to the Board pursuant to subsection
86(5).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.