G. Grant Machum & Richard Jordan

On December 20, 2019, the Supreme Court of Canada released its decision in Canada Post Corporation v. Canadian Union of Postal Workers, 2019 SCC 67.  This case involved a significant issue for federal employers – namely the extent of their occupational health and safety obligations under Part II of the Canada Labour Code (“Code”).  A majority of the Supreme Court agreed with an Appeals Officer with the Occupational Health and Safety Tribunal Canada that a federal employer’s obligation under the Code to annually inspect its work place only applies to work places over which the employer has physical control.

Union said employer had to inspect every route and location where mail was delivered

The Union filed a complaint in 2012 alleging that the joint health and safety committee (“Committee”) breached its obligation in s. 125(1)(z.12) of the Code to inspect every part of the work place by restricting its inspections to the Canada Post depot in Burlington, Ontario, and by failing to inspect the letter carrier routes and locations where mail was delivered (“points of call”).

Section 125(1)(z.12) of the Code says:

125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

 . . .

(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year.

Evidence indicated that Canada Post letter carriers travel 72 million linear kilometres delivering mail to 8.7 million points of call.

An Appeals Officer determined that the inspection obligation did “not apply to any place where a letter carrier is engaged in work outside of the physical building” in Burlington.  Although the letter carrier routes and point of call constituted a work place, the Appeals Officer determined that s. 125(1)(z.12) only applied to the parts of the work place over which Canada Post had control.  Since Canada Post had no control over the letter carrier routes and points of call, it had no obligation to inspect these.

Despite some disagreement in the courts below, the Supreme Court of Canada applied the new framework from Vavilov to the Tribunal’s decision and seven out of the nine judges agreed that the Appeals Officer’s interpretation of s. 125(1)(z.12) was reasonable.

Moving forward with respect to the 45 obligations

Until this decision, there had been some uncertainty about the scope of a federal employer’s 45 obligations under s. 125(1) because of confusion as to what the opening words of s. 125(1) meant.  There were generally two approaches:

• Approach A was that all 45 obligations in s. 125(1) apply when the employer controls the work place and when the employer controls the work activity even if it does not control the work place.
• Approach B was that while some obligations under s. 125(1) apply in both circumstances, some obligations could only apply where the employer controls the work place.

Although the Supreme Court of Canada’s decision confirmed Approach B with respect to the inspection obligation in s. 125(1)(z.12) of the Code, what remains to be seen is what this decision means for the remaining 44 obligations on a federal employer under s. 125(1) of the Code.

The Supreme Court’s reasons (particularly paragraphs 49 and 50) appear to signal the death knell for Approach A, the position advanced by the Union (paragraph 48). The Supreme Court also suggested that Approach A is not feasible because (paragraph 59):

An interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of preventing accidents and injury. While the Appeals Officer’s interpretation does limit the application of the obligations under s. 125(1), those obligations — and specifically the inspection obligation — cannot be fulfilled by an employer that does not control the work place.

Although other specific obligations under s. 125(1) will undoubtedly be litigated in the future, it is a welcome result for federal employers that the Supreme Court agreed with the Appeals Officer’s conclusion that employers will not have certain health and safety obligations under s. 125 where it controls the work activity but does not control the work place.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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