CANADIAN FREIGHTWAYS LIMITED Applicant - v. -, 2003 FCT 391

Date: 20030402 Docket: T-2279-01 Citation: 2003 FCT 391 Ottawa, Ontario, Wednesday, the 2 nd day of April, 2003 Present: THE HONOURABLE MADAM JUSTICE DAWSON BETWEEN: CANADIAN FREIGHTWAYS LIMITED Applicant - and - ATTORNEY GENERAL OF CANADA and WESTERN CANADA COUNCIL OF THE TEAMSTERS Respondents REASONS FOR ORDER AND ORDER [ 1 ] This is an application for judicial review of a decision of an appeals officer of the Canadian Appeals Office on Occupational Health and Safety dated November 27, 2001.

The applicant seeks an order setting aside the decision of the appeals officer and allowing the appeal, or, alternatively, an order sending the matter back for decision by a different appeals officer. [ 2 ] The application is unopposed. Neither respondent entered an appearance, filed written materials or appeared at the oral hearing of the application. BACKGROUND FACTS [ 3 ] The applicant is a less-than-truckload trucking company which provides transportation and related services for the movement of freight throughout western Canada.

Pursuant to that operation, the applicant operates a number of warehouse facilities in western Canada. The present application arises out of the applicant's operation of an indoor cross-dock facility in Prince George, British Columbia. [ 4 ] At the cross-dock, truck and trailer units loaded with freight are backed into the loading bays on two opposite sides of the cross-dock. The freight is then unloaded and either temporarily stored in the area or immediately transferred across the dock to be loaded onto other trucks.

Small forklifts and hand-operated forklifts are used to remove pallets or heavy freight from the truck and trailer units. [ 5 ] On May 29, 2000, a health and safety officer with Human Resources Development Canada conducted an audit of the Prince George workplace. At the conclusion of the audit, the health and safety officer completed an Assurance of Voluntary Compliance form which noted "[h]igh visibility vests not worn by employees regularly exposed to contact with moving vehicles".

In response, on August 31, 2000, the applicant advised the officer that it did not agree that the legislation requiring employees to wear high visibility vests applied in respect of the applicant's indoor cross-dock operation. [ 6 ] As a result, on November 22, 2000, the health and safety officer issued a direction to the applicant, pursuant to subsection 145(1) of the Canada Labour Code , R.S.C. 1985, c. L-2 (" Code "). The direction cited the applicant for contravening paragraphs 125(1) (

l) and (

w) of the Code , and paragraph 12.13(

a) of the Canada Occupational Safety and Health Regulations , SOR/86-304 (" Regulations "). The direction ordered the applicant to cease the contravention by December 20, 2000, and to take steps to ensure that the contravention did not continue or re-occur. [ 7 ] The direction was appealed by the applicant pursuant to subsection 146(1) of the Code . The appeal was heard by an appeals officer in Vancouver on September 18, 2001. The appeals officer confirmed the direction issued by the health and safety officer. This application for judicial review is in respect of that decision. RELEVANT LEGISLATION (

i) The Code [ 8 ] As noted above, the direction relevant to this application was issued pursuant to subsection 145(1) which is as follows:

A health and safety officer who is of the opinion that a provision of this

Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to (

a) terminate the contravention within the time that the officer may specify; and (

b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur. S'il est d'avis qu'une contravention à la présente

partie vient d'être commise ou est en train de l'être, l'agent de santé et de sécurité peut donner à l'employeur ou à l'employé en cause l'instruction :

a) d'y mettre fin dans le délai qu'il précise;

b) de prendre, dans les délais précisés, les mesures qu'il précise pour empêcher la continuation de la contravention ou sa répétition. [ 9 ] Paragraphs 125(1) (

l) and (

w) of the Code , said to be contravened, provide: 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, [...] (

l) provide every person granted access to the work place by the employer with prescribed safety materials, equipment, devices and clothing; [...] (

w) ensure that every person granted access to the work place by the employer is familiar with and uses in the prescribed circumstances and manner all prescribed safety materials, equipment, devices and clothing. Dans le cadre de l'obligation générale définie à l'article 124, l'employeur est tenu, en ce qui concerne tout lieu de travail placé sous son entière autorité ainsi que toute tâche accomplie par un employé dans un lieu de travail ne relevant pas de son autorité, dans la mesure où cette tâche, elle, en relève : [...]

l) de fournir le matériel, l'équipement, les dispositifs et les vêtements de sécurité réglementaires à toute personne à qui il permet l'accès du lieu de travail; [...]

w) de veiller à ce que toute personne admise dans le lieu de travail connaisse et utilise selon les modalités réglementaires le matériel, l'équipement, les dispositifs et les vêtements de sécurité réglementaires. [ 10 ] Subsections 146(1) and 146.1(1) of the Code govern the appeal to the appeals officer, and are to the following effect: 146.

(1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing. [...] 146.1

(1) If an appeal is brought under subsection 129(7) or

section 146, the appeals officer shall, in a

summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may (

a) vary, rescind or confirm the decision or direction; and (

b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1). 146.

(1) Tout employeur, employé ou syndicat qui se sent lésé par des instructions données par l'agent de santé et de sécurité en vertu de la présente

partie peut, dans les trente jours qui suivent la date où les instructions sont données ou confirmées par écrit, interjeter appel de celles-ci par écrit à un agent d'appel. [...] 146.1

(1) Saisi d'un appel formé en vertu du paragraphe 129(7) ou de l'article 146, l'agent d'appel mène sans délai une enquête

sommaire sur les circonstances ayant donné lieu à la décision ou aux instructions, selon le cas, et sur la justification de celles-ci. Il peut :

a) soit modifier, annuler ou confirmer la décision ou les instructions;

b) soit donner, dans le cadre des paragraphes 145(2) ou (2.1), les instructions qu'il juge indiquées. THE REGULATIONS [ 11 ] Central to the decision of the appeals officer were sections 12.1, 12.2, and 12.13 of the Regulations . They are:

12.1 Where (

a) it is not reasonably practicable to eliminate or control a safety or health hazard in a work place within safe limits, and (

b) the use of protection equipment may prevent or reduce injury from that hazard, every person granted access to the work place who is exposed to that hazard shall use the protection equipment prescribed by this Part. 12.2 All protection equipment referred to in

section 12.1 (

a) shall be designed to protect the person from the hazard for which it is provided; and (

b) shall not itself create a hazard. [...] 12.13 Where an employee is regularly exposed to contact with moving vehicles during his work, he shall (

a) wear a high-visibility vest or other similar clothing, or (

b) be protected by a barricade that is readily visible under all conditions of use. 12.1 Toute personne à qui est permis l'accès au lieu de travail doit utiliser l'équipement de protection réglementaire visé par la présenta

partie dans les cas suivants :

a) lorsqu'il est en pratique impossible d'éliminer ou de maintenir à un niveau sécuritaire le risque que le lieu de travail présente pour la sécurité ou la santé;

b) lorsque l'utilisation de l'équipement de protection peut empêcher une blessure ou en diminuer la gravité. 12.2 L'équipement de protection visé à l'article 12.1 :

a) doit être conçu pour protéger la personne contre le risque pour lequel il est fourni;

b) ne doit pas présenter de risque. [...] 12.13 L'employé qui, pendant son travail, est habituellement exposé au risque de heurt avec des véhicules en mouvement doit être protégé par l'un des dispositifs suivants, nettement visible dans toutes les conditions d'utilisation :

a) un gilet de signalisation ou un vêtement semblable;

b) une barrière. THE DECISION OF THE APPEALS OFFICER [ 12 ] The appeals officer correctly directed himself to the relevant issue: whether subsection 12.13(

a) of the Regulations applies in respect of the applicant's employees at the Prince George cross-dock such that they must wear high visibility vests or other similar clothing while carrying out their work. [ 13 ] In concluding that subsection 12.13(

a) applies, the appeals officer first determined that a forklift truck is a moving vehicle within the contemplation of

section 12.13 of the Regulations . No challenge is made to that finding. The appeals officer then turned to consideration of

Part XII of the Regulations, observing that

section 12.1 of the Regulations establishes that, to the extent it is reasonably practicable, an employer must eliminate or control hazards in the workplace to within safe limits. If it is not reasonably practicable to do so, and the use of protective equipment may prevent or reduce injury from the hazard, then the employer must ensure that the employees exposed to the safety hazard use the specified protection. The appeals officer further considered that

section 12.2 of the Regulations prescribes that protective equipment must be designed to protect the person from the hazard and must not, in itself, create a hazard. [ 14 ] Turning to the facts before him, the appeals officer found that to eliminate or to reduce to within safe limits the risk of accidental contact between employees and forklifts, as referred to in subsection 12.1(

a) of the Regulations , the employer must ensure a high level of organization and control of pedestrian and vehicular traffic. He rejected the applicant's submissions that the risk of accidental contact between employees and forklifts was minimal and within safe limits because the amount of pedestrian traffic in the warehouse is slight, and because the cross-dock is well illuminated.

In that regard, he was persuaded that employees not operating forklifts were regularly exposed to contact with a moving vehicle, and that while the cross-dock was well illuminated, in the officer's opinion sunlight entering through the warehouse doors could create shadows of uneven illumination or cause glare that could interfere with the ability of an operator or other employees to see each other and avoid accidental contact. [ 15 ] In response to the applicant's argument that high-visibility vests would not be beneficial and might even create a hazard for employees, the appeals officer found that little weight could be given to the view of the applicant's health and safety committees in that regard because the committees based their conclusions on anecdotal experience rather than study, and because they were influenced by an overall worker preference to forego personal protective equipment. [ 16 ] The appeals officer then concluded his reasons as follows: [44] Finally, [the applicant] argued that paragraph 12.1(

b) of the COSH Regulations requires a health and safety officer to substantiate that the use of a protection equipment may prevent or reduce injury from the hazard, which, [it] said, [the] health and safety officer [...] had not done. However, I remind [the applicant] of subsection 148.(5) of the Code which reads: 148.

(5) On a prosecution of a person for a contravention of any provision of this part, except paragraphs 125(1) (

c) and ( z.10 ) and ( z.11 ), it is a defence for the person to prove that the person exercised due care and diligence to avoid the contravention . However, no person is liable to imprisonment on conviction for an offence under any of paragraphs 125(1) (

c) and ( z.10 ) and ( z.11 ). [...] While a direction does not constitute a prosecution, I would say that the same principle of due diligence applies in respect of an appeal of a direction and the applicant has the burden to prove that the contravention did not occur.

[45] For all the above reasons, [the applicant] failed to establish to my satisfaction that their employees employed at the [applicant] warehouse at Prince George, British Columbia were not regularly exposed to contact with moving fork lift trucks during their work and that the risk created by that exposure was controlled within safe limits . I thereby confirm the direction that health and safety officer [...] issued pursuant to

section 145.(1) of the Code to [the applicant] on November 22, 2000 ordering [the applicant] to comply with

section 12.13(

a) of the [...] Regulations . [underlining added] THE ISSUES [ 17 ] The applicant asserts two errors on the part of the appeals officer. For the reasons that follow, I have only found it necessary to consider the first issue raised by the applicant, being whether the appeals officer erred in law by determining that subsection 148(5) of the Code (now subsection 148(4) and hereinafter referred to as subsection 148(4) of the Code ) created an onus upon the applicant to prove that the contravention of the Regulations did not occur. STANDARD OF REVIEW [ 18 ]

Section 146.3 of the Code provides that an appeals officer's decision is final and shall not be questioned or reviewed in any court. Therefore, such decisions may only be reviewed if the appeals officer made an error in interpreting the provisions conferring jurisdiction or exceeded the officer's jurisdiction by making a patently unreasonable error of law. See: CAIMAW v. Paccar of Canada Ltd. , 1989 CanLII 49 (SCC) , [1989] 2 S.C.R. 983 at page 1003.

ANALYSIS [ 19 ] The appeals officer correctly concluded that the effect of the Regulations quoted above is that where an employee is regularly exposed to contact with moving vehicles, that employee is required to wear a high-visibility vest or other similar clothing where:

i) it is not reasonably practicable to eliminate or control the safety hazard posed by such exposure; ii) the use of the vest or other similar clothing may prevent or reduce injury from that hazard; and iii) the vest or other similar clothing shall not in itself create a hazard. [ 20 ] The Regulations are, however, silent as to who bears the onus of establishing these elements on an appeal from a direction.

In response to the applicant's argument that the evidence before the appeals officer did not establish the second required element (that is, that the safety vest may prevent or reduce injury), the appeals officer invoked subsection 148(4) of the Code to place the burden of proof on the applicant to prove that the Regulations were not contravened. In so invoking subsection 148(4) the appeals officer erred. [ 21 ]

Section 148 of the Code is a general offence provision. Subsection 148(1) makes it an offence to contravene a provision of

Part II of the Code . Subsection 148(4) of the Code (then subsection 148(5) ) provides that it is a defence to a prosecution for contravening a provision of

Part II for the accused to prove that he or she exercised due care and diligence to avoid the contravention. [ 22 ] This due diligence defence to a prosecution has no relevance to an appeal of a direction issued by a health and safety officer for the following reasons. The presence of the due diligence defence in

section 148 of the Code (dealing with offences) together with the absence of a similar provision in

section 146 or 146.1 of the Code (dealing with appeals of directions) gives rise to an inference that Parliament did not intend for there to be any due diligence defence with respect to appeals of directions. This likely reflects the fact that the offence provision in

section 148 of the Code relates to the prosecution of regulatory offences, which are generally strict liability offences. In such cases, the prosecution is required to prove the offence beyond a reasonable doubt following which the accused may proffer a defence of due diligence or mistake of fact in order to escape a finding of guilt. See: The Queen v. Sault Ste. Marie (City) , 1978 CanLII 11 (SCC) , [1978] 2 S.C.R. 1299. A due diligence defence has no relevance to an appeal of a direction where at issue on the appeal is the applicability of a

section of the Regulations . [ 23 ] In effect, the appeals officer, in the course of determining whether

section 12.13 of the Regulations applied to the cross-dock operation, required the applicant "to prove that the contravention did not occur". This was an error. [ 24 ] As to the effect of this error, in H.D. Snook (1991), 86 di 74, the Chairman of the Canada Labour Relations Board ("Board") considered the nature of proceedings on an appeal from a decision of a safety officer. At the time of this decision, the Code provided that such appeals went to the Board.

Board Chairman Weatherill described the appeal hearing process in the following terms: At the hearing, a relatively informal, although orderly, procedure was followed. At the request of the Board, the safety officer was present and was called as the Board's witness for the purpose of clarifying the circumstances of the decision. Both parties were free to question the safety officer as well as each other, and to advance evidence and argument, the only limitations thereon being my own direction that the parties confine themselves to what was relevant, namely the safety issue.

It was made clear to the parties that the safety officer was not there to "defend" his decision; that the proceedings were not in the nature of an "appeal" in any technical sense; and that there was no particular "onus" on anyone: the Board is, as the Code contemplates, conducting its own inquiry - in a

summary way - into the circumstances in which a "no danger" decision was made. [underlining added]

[ 25 ] More recently, in Verville and Canada (Correctional Service) , [2002] C.L.C.A.O.D. No. 12 at paragraph 15, an appeals officer described the nature of an appeal of the type at issue in the present proceeding as follows: The Code permits anyone who is "aggrieved" by a direction to appeal this direction to an appeals officer (s. 146(1)). The appeals officer then shall, "in a

summary way", inquire into the circumstances of the direction, and may vary, rescind, or confirm the direction (s. 146.1(1)). The job of the appeals officer is to place himself or herself in the shoes of the health and safety officer and make the determination that he or she ought to have made. An appeal under s. 146(1) is not an "appeal" in the technical sense, and thus there is no onus on anyone (see H.D. Snook [...]). Guided by s.122.1, which states that the purpose of

Part II of the Code is to "prevent accidents and injury to health arising out of, linked with or occurring in the course of employment", an appeals officer is simply concerned with coming up with the correct decision from a health and safety perspective. [ 26 ] These authorities suggest that the hearing into an appeal of a discretion is in the nature of a de novo hearing where the appeals officer is to view all of the circumstances and then make a decision. [ 27 ] In the present case, the appeals officer relied upon an irrelevant provision to require the applicant to assume the burden of proving that the Regulations were not breached.

In so doing, the officer erred and I am satisfied that the error was a sufficiently serious and material error of law as to vitiate the officer's analysis of the evidence. It follows that the decision should be quashed. COSTS [ 28 ] I see no reason why costs should not follow the event. The applicant is entitled to one set of costs to be paid by the respondent Attorney General of Canada. ORDER [ 29 ] THIS COURT THEREFORE ORDERS THAT: 1. The appeals officer's decision is quashed. 2. The applicant is entitled to one set of costs to be paid by the respondent Attorney General of Canada. "Eleanor R.

Dawson" _________________________ Judge FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-2279-01 STYLE OF CAUSE: Canadian Freightways Limited v. Attorney General of Canada, and others PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: March 12, 2003 REASONS FOR ORDER AND ORDER : The Honourable Justice Eleanor R. Dawson DATED: April 2, 2003 APPEARANCES : Bruce Grist FOR APPLICANT Jack Wright FOR RESPONDENT/ (Attorney General of Canada) Don Davies FOR RESPONDENT/ (Teamsters Local Union No.31) Jocelynne Paris FOR RESPONDENT/ (Canada Appeals Office)

SOLICITORS OF RECORD : Fasken Martineau Du Moulin LLP FOR APPLICANT Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada