Audit, Compliance and Risk Blog

“Workplace” Under Part II of the Canada Labour Code Includes Work Activities Performed in Workplaces Not Controlled by the Employer

Posted by Maryse Tremblay on Tue, Oct 17, 2017

Canada Post cropped.jpgIn a recent decision, Canadian Union of Postal Workers v. Canada Post Corporation, the Federal Court of Appeal reversed an earlier Federal Court endorsement of an appeals officer’s decision to limit the definition of “workplace” for the purposes of inspection under Part II of the Canada Labour Code to workplaces where the employer exercises control.

In this case, a complaint was filed by an employee member of a local joint health and safety committee, represented by the Canadian Union of Postal Workers, alleging that Canada Post should not only be inspecting its physical building in Burlington, Ontario, but also the letter carrier routes.

In 2012, the health and safety officer issued a direction, finding that Canada Post had failed to ensure that the entirety of the workplace was inspected annually in contravention of paragraph 125(1)(z.12) of the Code. Canada Post appealed the direction and the appeals officer rescinded the contravention of paragraph 125(1)(z.12) of the Code. The appeals officer concluded that the inspection obligation did not apply to any place where a letter carrier is engaged in work outside of Canada Post’s physical building in Burlington, given that the employer does not exercise control over these workplaces. In the appeals officer’s view, the inspection obligation only arises where the employer controls the workplace, as the purpose of the inspection is the identification and opportunity to fix hazards. The appeals officer concluded that Canada Post has no physical control over the points of call and lines of route and, therefore, cannot fix hazards.

In the earlier judgment, the Federal Court determined that the appeals officer’s interpretation, which draws a distinction between control over the “workplace” and control over the “work activity,” was reasonable. The Federal Court found that it was not unreasonable for the appeals officer to conclude that Canada Post could not fulfill the purpose of the inspection obligation without control over the workplace.
The Federal Court of Appeal, however, allowed the appeal in a divided judgment. Justice Near, who wrote dissent reasons, would have dismissed the appeal and confirmed the appeals officer’s decision.

Justice Nadon, however, held that the appeals officer’s interpretation was unreasonable for two reasons. First, he held that the appeals officer’s interpretation constitutes a redrafting of paragraph 125(1)(z.12). Based on the wording of the legislation, Justic Nadon first held an employer must comply with all obligations set out in 125(1) of the Code when the employer controls the workplace and when the employer does not control the workplace but controls the work activity of the employees in that workplace. Justice Nadon found that the appeals officer read out one of the two circumstances set out in subsection 125(1), i.e., where the employer does not control the workplace but controls the work activities, an avenue that was not open to him.

Second, Justice Nadon held that the appeals officer’s finding that the obligation found at paragraph 125(1)(z.12) could not be fulfilled by Canada Post was also unreasonable. Based on the evidence, Justice Nadon was satisfied that Canada Post was fully able to identify and address hazards to employee health and safety on letter carrier routes and points of call. Canada Post already has a policy that outlines a process for employees to identify hazards and impediments to delivery and the attempts that are to be made to resolve issues with customers following identification of the hazards and impediments. Hence, this policy permits supervisors to divert or suspend mail delivery to a location until the hazard or impediment is removed or prevented. In light of that evidence, Justice Nadon concluded that it was unreasonable for the appeals officer to say that Canada Post is unable to identify and fix hazards encountered on the letter carrier routes and points of call because it does not have exclusive access to private properties.

Although Justice Rennie concurred with Justice Nadon’s disposal of the appeal, he took his analysis one step further. In his view, once it is determined that the employer controls the work activity, it is necessary to assess the extent to which the employer controls the activity. According to Justice Rennie, the scope of the inspection obligation is informed by the extent of control over the activity. He stated the following:

It is true that Canada Post controls many aspects of how the mail is delivered — the choice and design of the route, how it is walked or driven, how the satchel is carried and so forth, but I do not agree that the inspection obligation invariably follows each aspect along with it without any variance in the extent of application. In my view, simply because Canada Post may control aspects of the activity, i.e., it may direct the postal worker to take public transit to return to the post office at the end of the route rather than a taxi, it does not follow that the inspection obligation applies to the fullest extent, for example, to the safety of public transit, as appears to be urged by the appellant.

Similarly, Canada Post may give instructions as to how to deal with dangerous dogs, but this does not necessarily mean that the inspection obligation extends to an assessment of the risk posed by the dog. Canada Post may tell postal workers how to navigate icy sidewalks and provide them with cleats, but this does not mean that there is an obligation to inspect all of the sidewalks in a city or check on the effectiveness of city sidewalk snow clearing and sanding operations.

Ultimately, Justice Rennie held that an analysis of the activity and the parameters of the employer’s control over it is required in each case to assess the scope of the inspection obligation.

This conclusion is likely to lead to debate in the various federally regulated workplaces based on differences of opinions regarding the assessment of the work activities and the type and extent to which the work activities are controlled by the employer.

Specialty Technical Publishers (STP) has just published an update to its publication Employment Law: Solutions for the Canadian Workplace and provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

About the Author
Maryse Tremblay.jpg

Maryse Tremblay is a partner at Borden Ladner Gervais. Her practice encompasses advocacy and advisory work in the areas of labour and employment law, human rights and privacy. She focuses on labour relations, grievance arbitration, collective bargaining and personnel management. She has extensive expertise in advising and representing federally-regulated employers. Maryse is a Fellow of the College of Labor and Employment Lawyers.

 
photo credit: Camera Eye Photography 40:365 Post Office via photopin (license)

Tags: Canadian, Employee Rights, Employer Best Practices, Health & Safety