BETWEEN:
PAMELA SACHS, CANADIAN UNION OF PUBLIC EMPLOYEES,
AIRLINE DIVISION, AIR CANADA COMPONENT, OCCUPATIONAL
HEALTH AND SAFETY COMMITTEE OF LOCAL 4004 (TORONTO)
and
Heard at Toronto, Ontario, on September 11, 2007.
Judgment delivered from the Bench at Toronto, Ontario, on September 11, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Docket: A-290-06
Citation: 2007 FCA 279
CORAM: DÉCARY J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
PAMELA SACHS, CANADIAN UNION OF PUBLIC EMPLOYEES,
AIRLINE DIVISION, AIR CANADA COMPONENT, OCCUPATIONAL
HEALTH AND SAFETY COMMITTEE OF LOCAL 4004 (TORONTO)
Appellants
and
AIR CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on September 11, 2007)
[1] The merger of Air Canada and Canadian International Airlines Limited on January 4, 2000, and the resulting combination of their respective unionized workers, has caused a number of difficulties. One difficulty that apparently remains unresolved is the introduction, in January of 2001, of certain amendments to the In Flight Safety Manual. Those amendments are at the root of this appeal.
[2] The appellants were of the view and still believe that the amendments to the In Flight Safety Manual gave rise to certain risks to the health and safety of cabin personnel. The appellants made a complaint under the internal complaint resolution process mandated by section 127.1 of the Canada Labour Code. When the complaints were not resolved to the satisfaction of the appellants, the complaints were referred to a health and safety officer under subsection 127.1(8).
[3] The duties and powers of a health and safety officer are described in subsections 127.1(9), (10) and (11) of the Canada Labour Code, which read as follows:
[4] Subsections 145(1) and (2) of the Canada Labour Code read as follows:
[5] The health and safety officer, Mr. Jacques Servant, decided not to issue a direction under subsection 145(1) or (2). Instead, with respect to two of the complaints, he accepted an “assurance of voluntary compliance” from Air Canada with respect to the establishment and training of local health and safety committees. The remaining complaints were effectively dismissed.
[6] Mr. Servant’s decision is set out in a letter dated May 7, 2001, the key parts of which read as follows (Appeal Book, page 310):
Our concerns as a Health and Safety Inspector relate to the local Health and Safety committees. Our investigation indicates a lack of knowledge/education of the workplace committee members. CUPE trained the employee representatives and Air Canada does not train the employer representatives. Counselling and training must be conducted together to understand the intent of the legislation. A good education program is the key to creating an effective workplace committee. The administrative roles and responsibilities of those involved in the workplace committee must be clearly understood. Committees are required by law to establish rules and procedures relating to the terms of office of members and to their operation. |
To ensure that occupational health and safety becomes part of the overall corporate decision making process, Managers in each department of the company must be aware that decisions regarding changes on-board aircraft may affect the aircrew’s work and create hazards in their workplace. Decisions and initiatives shall be discussed with the policy committee. These concerns were conveyed to Air Canada by requesting assurances of voluntary compliance. |
We could not find any evidence that Air Canada has contravened the employer’s general duty to ensure that the safety and health at work of every person employed by the employer is protected. In fact, by having a required flight attendant manual where safety and emergency procedures are set out demonstrates that the employer assumes his responsibilities under section 124. |
[7] The appellants believe that the investigation of their complaints was biased and flawed in a number of respects, and that the resulting decision of Mr. Servant is similarly flawed. The parties have agreed that, for the purposes of this appeal, the Court should assume that these complaints are justified. The appellants filed a notice of appeal of his decision under subsection 146(1) of the Canada Labour Code, which reads as follows:
[8] An appeals officer, Mr. Douglas Malanka, considered the matter and concluded that he lacked the statutory authority to consider an appeal of a decision by a health and safety officer not to issue a direction under section 145. The appellants commenced an application for judicial review of the decision of Mr. Malanka. On June 1, 2006, Justice Hughes dismissed the application for judicial review but gave the appellants an extension of time for filing an application for judicial review of the decision of the health and safety officer, Mr. Servant (2006 FC 673). The appellants now appeal the decision of Justice Hughes.
[9] The appellants argue that the decision of Justice Hughes is based on an incorrect interpretation of subsection 146(1) of the Canada Labour Code, and that Justice Hughes afforded the decision of Mr. Malanka too much deference on the question of the interpretation of that provision. In the alternative, the appellants argue that if section 146(1) was correctly interpreted by Justice Hughes and Mr. Malanka, it is a breach of section 7 of the Canadian Charter of Rights and Freedoms and should be amended by a judicial “reading in” of words that would permit the appellants to pursue their appeal of the decision of Mr. Servant not to issue a direction.
[10] We are all of the view that the interpretation of subsection 146(1) adopted by Justice Hughes and Mr. Malanka is correct. Subsection 146(1) of the Canada Labour Code grants an employer, an employee or a trade union a right to appeal any direction by a health and safety officer under section 145, but does not grant anyone a right to appeal a decision by a health and safety officer not to issue a direction. We do not consider it necessary to consider the issue of the standard of review that was or should have been applied by Justice Hughes in reviewing the decision of Mr. Malanka.
[11] We see no merit in the argument of the appellants that section 7 of the Charter is breached by subsection 146(1) of the Canada Labour Code. It is well established that there is no constitutional right to appeal, even in matters with a significant effect on the life, liberty and security of the person (Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 52 (per Justice La Forest); Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paragraph 136; Huynh v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 976; Canada (Secretary of State) v. Luitjens (1992) 142 N.R. 173 (F.C.A.)). Section 7 of the Charter does not require Parliament to provide a statutory right to appeal a decision of a health and safety officer. Nevertheless, Parliament has provided a statutory right to appeal the issuance of a section 145 direction by a health and safety officer. We see no basis for concluding that, because of section 7 of the Charter, the existence of that limited right of appeal means that there must also be a right to appeal the decision of a health and safety officer not to issue such a direction.
[12] This appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-290-06
An appeal from the order of the Honourable Mr. Justice Hughes, of the Federal Court, dated June 1, 2006. File no.: T-776-02.
STYLE OF CAUSE: PAMELA SACHS, CANADIAN UNION OF PUBLIC
EMPLOYEES, AIRLINE DIVISION, AIR CANADA
COMPONENT, OCCUPATIONAL HEALTH AND
SAFETY COMMITTEE OF LOCAL 4004 (TORONTO)
Appellants
and
AIR CANADA
Respondent
PLACE OF HEARING: Toronto, Ontario.
DATE OF HEARING: September 11, 2007
REASONS FOR JUDGMENT
OF THE COURT BY: (DÉCARY, SEXTON & SHARLOW JJ.A.)
DELIVERED FROM THE
APPEARANCES:
Mr. Ben Millrad |
FOR THE APPELLANTS
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Barristers & Solicitors Toronto, Ontario |
FOR THE APPELLANTS
|
Dorval, Quebec |
FOR THE RESPONDENT
|