A-491-03
2005 FCA 156
Douglas Martin and Public Service Alliance of Canada (Appellants)
v.
Attorney General of Canada (Respondent)
Indexed as: Martin v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Rothstein, Noël and Sexton JJ.A.--Ottawa, March 15; May 6, 2005.
Labour Relations -- Appeal from Federal Court decision dismissing application for judicial review of appeals officer's recision of health and safety officer's decision that park wardens should be allowed to carry sidearms in performing law enforcement duties in national parks -- Parks Canada issuing direction sidearms would not be routinely issued as standard equipment to park wardens performing law enforcement duties under Canada National Parks Act -- Upon investigation of complaint under Part II of Canada Labour Code (Code) health and safety officer finding certain law enforcement activities placing park wardens at risk of grievous bodily harm or death if not provided with necessary personal protective equipment -- Directing Parks Canada to take measures to correct hazard, protect wardens from danger under Code, s.145(2)(b) -- On appeal, appeals officer finding no evidence to conclude situation of —danger— existed as term defined in Code -- Given strong privative clause in Code regarding appeals officer's decision, review standard of patent unreasonableness applicable -- Appeals officer considering assessment of complaint should have been made under Code, s. 124, dealing with occupational health and safety -- Also considering any direction should have been made under s. 145(1) as s. 145(2) highly specific provision dealing with restrictive concept of —danger— -- Also finding s. 124 sufficiently broad to cover all professions where —intentionality— or —unpredictability of human behaviour— present, such as park wardens -- Since addition of s. 145.1(2) to Code, no doubt appeals officer can proceed under s. 145(1) when health and safety officer making previous determination under s. 145(2) -- S. 145.1(2) providing appeals officer having powers, duties, immunity of health and safety officer -- Since appeals officer considering direction issued under s. 145(1) by health and safety officer inappropriate, patently unreasonable not to have assessed facts before him under s. 124 -- Appeals officer's reasoning behind determination park wardens' law enforcement activities not meeting definition of —danger— contradictory -- Dismissing evidence of any sort proving —danger—; treating evidence of future activity as hypothetical, speculative -- Appeals officer required to apply definition of —danger— to facts in evidence and consider potential hazard as well as future activity -- Failure to apply provisions of Part II of Code determined applicable, take account of relevant evidence rendering decision patently unreasonable.
Administrative Law -- Judicial Review -- Courts applying lesser deferential review standard to decisions where questions of law with precedential value at issue and involving statutory appeals -- However, tribunal decisions subject to strong privative clauses requiring review standard of patent unreasonableness despite decisions' precedential value -- Appeals officers' decisions under Canada Labour Code subject to strong privative clause.
This was an appeal from a Federal Court decision dismissing an application for judicial review of an appeals officer's decision to rescind a health and safety officer's decision that park wardens should be allowed to carry sidearms in performing law enforcement duties in national parks. In Ja nuary 2000, Parks Canada issued a direction that sidearms would not be routinely issued as standard equipment to park wardens performing law enforcement duties under the Canada National Parks Act. The appellant, a park warden in Banff National Park, filed a complaint under Part II of the Canada Labour Code (Code), which deals with occupational health and safety. He alleged that park wardens performing law enforcement duties should be equipped with sidearms and be trained to use them. An investigation was conducted by a health and safety officer, who stated that certain law enforcement activities carried out by park wardens would place them at risk of grievous bodily harm or death because they were not provided with necessary personal protective equipment. He directed Parks Canada to take measures within six months to correct the hazard and protect the wardens from the danger. Under paragraph 145(2)(b) of the Code, he further directed Parks Canada to discontinue the activity that constitutes a danger until compliance with the direction. Parks Canada appealed the decision to an appeals officer, seeking a recision of the decision and the appellants appealed seeking an order requiring Parks Canada to issue sidearms or to develop a procedure for the issuance of sidearms. An appeals officer allowed the appeal and rescinded the health and safety officer's decision. He stated that there was no evidence to conclude that a situation of "danger" existed as that term is defined in subsection 122(1) of the Code.
The issues were whether park wardens performing law enforcement duties should be issued sidearms and whether the matter should be remitted to the appeals officer for redetermination having regard to the proper definition of the term "danger" in subsection 122(1) of the Code.
Held, the appeal should be allowed.
The Federal Court Judge found that, under the Code, the standard of review of an appeals officer's decision was patent unreasonableness. However, she added that the Court's analysis would have a precedential value on the decisions of other appeals officers that could ultimately affect the health and safety of employees and that greater scrutiny of the decision was called for. She therefore concluded that the applicable standard of review was reasonableness simpliciter. While the courts have accorded less deference to decisions of tribunals where questions of law with precedential value are at issue, these instances generally involved statutory appeals. However, the situation is different in the case of judicial review of tribunal decisions that are subject to strong privative clauses. The privative clauses regarding the decisions of appeals officers under the Code (sections 146.3 and 146.4) provide that an appeals officer's decision is final and shall not be que stioned or reviewed in any court. Given such strong terms, it would be inconsistent for the courts to arrogate to themselves the power to establish precedence for a tribunal to follow in respect of the interpretation of its home statute. Therefore the standard of review to apply to the appeals officer decision was patent unreasonableness.
The health and safety officer's decision was made under subsection 145(2) of the Code, which applies when that officer considers that the performance of an activity const itutes a danger to an employee while at work. The appeals officer considered that the health and safety officer's assessment of the appellant's complaint should have been made under section 124 of the Code, which provides that the employer must ensure that the health and safety at work of all employees is protected and that any direction should have been made under subsection 145(1) to terminate the contravention or to take steps to ensure that the contravention did not continue or re-occur. The appeals officer was of the view that by proceeding under subsection 145(2), the health and safety officer invoked a highly specific provision dealing with the restrictive concept of "danger". He also found that section 124 is sufficiently broad to cover all professio ns where "intentionality" or the "unpredictability of human behaviour" are present, and that the law enforcement activities of park wardens involved both these elements. Since the addition of subsection 145.1(2) to the Code, there is no longer any doubt th at an appeals officer can proceed under subsection 145(1) when a health and safety officer has made a previous determination under subsection 145(2). That new subsection provides that an appeals officer has all of the powers, duties and immunity of a health and safety officer, which includes the power to vary or rescind any direction made by a health and safety officer that the appeals officer considers inappropriate. An appeal before an appeals officer is de novo and as such, gives the appeals officer wide powers. Therefore, there is no rationale that would justify precluding an appeals officer from making a determination under subsection 145(1), if he finds a contravention of Part II of the Code, notwithstanding that the health and safety officer had issued a direction under subsection 145(2). It was patently unreasonable for the appeals officer not to have assessed the facts before him under section 124.
In conducting a "danger" analysis, the appeals officer considered whether, without side arms, park wardens performing law enforcement activities were in "danger" as that term is defined in subsection 122(1) of the Code. He found that the definition was not met for contradictory reasons. Positive anecdotal experience of the past was rejected. Negative anecdotal experience was accepted. Evidence of risk of injury that could pertain to the future was rejected as hypothetical or speculative. The appeals officer did not leave room for evidence of any sort that would prove a danger within the meaning of the Code. When attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, the future is necessarily dealt with. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal is then to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future. In conducting his "danger" analysis, the appeals officer was required to apply the definition of "danger" to the facts in evidence before him and to consider potential hazard as well as future activity. In treating any evidence about potent ial hazard and future activity as irrelevant, hypothetical or speculative, he foreclosed the possibility of any evidence satisfying the definition. In his assessment of danger regarding the appellant's complaint, the appeals officer should have considered and weighed the evidence before him, including anecdotal past incidents involving park wardens, the fact that park wardens were issued bulletproof vests by Parks Canada, and the job description of park wardens requiring them to conduct difficult and complex special law enforcement activities. The Federal Court of Appeal should not weigh the evidence or come to any conclusion about whether the evidence rose to the level of a reasonable expectation of injury. The Court is required to determine whether the appeals officer had regard to relevant evidence. Because the appeals officer failed to apply provisions of Part II of the Canada Labour Code, which he determined were applicable, and because he failed to take account of relevant evidence, his decision was patently unreasonable.
statutes and regulations judicially
considered
| Canada Labour Code, R.S.C., 1985, c. L-2, ss. 122(1) "danger" (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 1; S.C. 2000, c. 20, s. 2), 122.1 (as enac ted by R.S.C., 1985 (1st Supp.), c. 9, s. 1; S.C. 2000, c. 20, s. 2), 122.2 (as enacted idem, s. 3), 124 (as am. idem, s. 5), 140(1) (as am. idem, s. 14), 145(1) (as am. idem), 145(2)(a) (as am. idem), (b) (as am. idem), 145.1(1) (as enacted idem), (2) (as enacted idem), 146(1) (as am. idem), 146.1 (as enacted idem), 146.2 (as enacted idem), 146.3 (as enacted idem), 146.4 (as enacted idem). |
| Canada National Parks Act, S.C. 2000, c. 32. |
cases judicially considered
applied:
Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644.
referred to:
Parks Canada Agency and Martin, [2002] C.L.C.A.O.D. No. 8 (QL); Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45; (2002), 219 D.L.R. (4th) 577; 21 C.P.R. (4th) 417; 296 N.R. 1; 2002 SCC 76; Federal Marine Terminals Ltd., Division of Fednav Ltd. v. Longshoremen's Union, Local 375 (2000), 192 F.T.R. 1 (F.C.T.D.); affd (2001), 213 F.T.R. 59; 289 N.R. 380; 2001 FCA 363.
authors cited
Mullan, David. "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 Can. J. Admin. L. & Prac. 59.
APPEAL from a Federal Court decision ([2004] 1 F.C.R. 625; (2003), 240 F.T.R. 130; 2003 FC 1158) dismissing an application for judicial review of an appeals officer's decision to rescind a health and safety officer's decision that park wardens should be allowed to carry sidearms in performing law enforcement duties in Nati onal Parks. Appeal allowed.
appearances:
Andrew J. Raven and Paul Champ for appellants.
Kirk N. Lambrecht, Q.C. and J. Sanderson Graham for respondent.
solicitors of record:
Raven, Allen, Cameron, Ballantyne & Yazbeck LLP, Ottawa, for appellants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
INTRODUCTION
[1]This appeal from a decision of the Federal Court, reported as [2004] 1 F.C.R. 625, involves the question of whether about 150 park wardens performing law enforcement duties in national parks should be allowed to carry sidearms.
FACTS
[2]In January 2000, the Chief Executive Officer of Parks Canada issued a direction that sidearms would not be routinely issued as standard equipment to park wardens performing law enforcement duties under the Canada National Parks Act, S.C. 2000, c. 32.
[3]In June 2000, the appellant, Douglas Martin, a park warden in Banff National Park, filed a complaint under Part II of the Canada Labour Code, R.S.C., 1985, c. L-2 (Code). Part II of the Code deals with occupational health and safety. The complaint alleged that park wardens performing law enforcement duties should be equipped with sidearms and be trained to use them.
[4]An investigation was conducted by R. G. Grundie, a health and safety officer designated by the Minister of Labour under subsection 140(1) [as am. by S.C. 2000, c. 20, s. 14] of the Code. By direction dated February 1, 2001, Mr. Grundie stated that he considered that certain law enforcement activities carried out by park wardens would place them at risk of grievous bodily harm or death because they were not provided with necessary personal protective equipment:
Wardens in that Park who are expected to engage in law enforcement activities such as patrols, intelligence gathering, investigations of possible offences and arrests, for resource management purposes and the maintenance of the public peace, activities in the performance of which they may find themselves at risk of grievous bodily harm or death, are not provided with the necessary personal protective equipment. In like circumstances, officials carrying out similar duties such as federal Fisheries Officers, Environment Canada Wildlife Enforcement Officers and provincial conservation officers, are authorized to carry sidearms.
[5]Therefore, pursuant to paragraph 145(2)(a) [as am. idem] of the Code, he directed Parks Canada to take measures within six months to:
(a) correct the hazard or condition or alter the law enforcement activity of the wardens, or
(b) protect the wardens from the danger.
[6]Pursuant to paragraph 145(2)(b) [as am. idem], he further directed Parks Canada to "discontinue the activity that constitutes a danger until you have complied with the direction issued in (paragraphs (a) and (b))."
[7]Both Parks Canada and Mr. Martin (and the Public Service Alliance of Canada) appealed Mr. Grundie's decision to an appeals officer pursuant to subsection 146(1) [as am. idem] of the Code. Parks Canada sought recision of Mr. Grundie's decision. Mr. Martin and the PSAC sought an order expressly requiring Parks Canada to issue sidearms or to develop a procedure for the issuance of sidearms.
[8]Hearings were conducted by Serge Cadieux, an appeals officer designated by the Minister under subsection 145.1(1) [as enacted idem] of the Code. By decision dated May 23, 2002 [Parks Canada Agency and Martin, [2002] C.L.C.A.O.D. No. 8 (QL)], Mr. Cadieux allowed the appeal of Parks Canada and rescinded Mr. Grundie's decision. He was of the opinion that there was no evidence to conclude that a situation of "danger" existed as that term is defined in subsection 122(1) [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 1; S.C. 2000, c. 20, s. 2] of the Code.
[9]Mr. Martin and the PSAC sought judicial review in the Federal Court. By order dated October 6, 2003, the Federal Court dismissed the judicial review.
[10]Mr. Martin and the PSAC now appeal to this Court.
ISSUE
[11]The appellants say that park wardens performing law enforcement duties should be issued sidearms and be trained to use them. They ask that this Court remit the matter to the appeals officer for redetermination having regard to the proper definition of the term "danger" in subsection 122(1) of the Code.
ANALYSIS
| Standard of Review |
[12]It is first necessary to address the standard of review. There are no errors of fact alleged in the Federal Court Judge's decision. This Court will review her decision for errors of law on a correctness standard. In determining whether the Judge erred in law, this Court must assess her determination of the standard of review of the decision of appeals officer Cadieux. The Court will also assess Mr. Cadieux's decision, applying the appropriate standard of review.
[13]The Judge conducted an extensive standard of review analysis. Her penultimate finding was that the standard of review of a decision of an appeals officer under the Code was patent unreasonability. Indeed, the Judge quoted McLachlin J. (as she then was) in Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, in which McLachlin J. expressly found that decisions of specialized tribunals, such as the Labour Board, are to be accorded deference both as to the determination of facts and the interpretation of the law and that the Court should only interfere if the interpretation placed on legislation by the Tribunal was patently unreasonable. To this point, I agree with the Judge's analysis. However, she then went on at paragraph 41 of her reasons:
Nevertheless, the Court's analysis will have a precedential value on the decisions of other appeals officers which may ultimately have an effect on the health and safety of employees. This suggests that more scrutiny should be given to the decision of the appeals officer in the present case.
[14]As a result, she concluded that the applicable standard of review was reasonableness simpliciter. In this Court, Mr. Martin and the PSAC suggested an even less deferential standard of review. They argued that because this is the first time that the issue of the new definition of "danger" in subsection 122(1) of the Code has come before the Court, because the decision will have precedential value and because the question is one of vital importance, the appropriate standard of review should be correctness.
[15]It is true that the courts have accorded less deference to decisions of tribunals where questions of law with precedential value are at issue. However, these instances generally involved statutory appeals. See, for example, Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45.
[16]I think the situation is different in the case of judicial review of tribunal decisions that are subject to strong privative clauses. In the case of decisions of appeals officers under the Code, the privative clauses are worded in strong terms [sections 146.3 (as enacted by S.C. 2000, c. 20, s. 14), 146.4 (as enacted idem)]:
146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any court.
146.4 No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an appeals officer in any proceeding under this Part.
[17]Professor David Mullan has observed that in such cases "the legislature has expressed confidence in the ability of a decision-maker to interpret questions of law arising under its home statute and to itself establish a corpus of decisions having precedential value in the sense of application to many future cases." See Mullan, David J., "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 Can. J. Admin. L. & Prac. 59, at page 77. One might question the wisdom of protecting legal interpretations of non-legally trained appeals officers from more intrusive review by the courts. However, the Court must take the statute as it finds it. The Court cannot apply common law principles that are implicitly inconsistent with strong legislative language. Where Parliament has expressed itself in the strong terms it has in the Canada Labour Code, I think it would be inconsistent for the courts to arrogate to themselves the power to establish precedence for a tribunal to follow in respect of the interpretation of its home statute.
[18]For these reasons, I am of the opinion that the standard of review of Mr. Cadieux's decision is patent unreasonability.
| Mr. Cadieux's Failure to Apply Relevant Provisions |
[19]Mr. Grundie's decision was made under subsection 145(2) of the Code. Subsection 145(2) applies when a health and safety officer considers that the performance of an activity constitutes a danger to an employee while at work. Subsection 145(2) provides:
145. . . .
(2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,
(a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(ii) protect any person from the danger; and
(b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer's directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.
[20]Mr. Cadieux was critical of Mr. Grundie for proceeding under subsection 145(2). In his view, Mr. Grundie should have assessed Mr. Martin's complaint under section 124 [as am. by S.C. 2000, c. 20, s. 5] and made any direction under subsection 145(1) of the Code. Section 124 provides:
124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.
[21]In the case of a determination by a health and safety officer that a provision of Part II of the Code has been contravened, in this case section 124, the health and safety officer may issue a direction under subsection 145(1) [as am. idem, s. 14]:
145. (1) 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.
[22]Mr. Cadieux determined that Mr. Grundie had made a finding of a contravention of section 124 [at paragraph 147].
In this case, the health and safety officer concluded ". . . that the Agency is not taking all reasonable steps to mitigate or safely manage the recognized risks inherent to the Warden's law enforcement activities." This is, in my opinion, a finding that the employ er was not complying with its general obligation under section 124 of the Code to protect its employees.
He then observed that, had Mr. Grundie proceeded under subsection 145(1), it would have been "more appropriate, effective and beneficial" to everybody involved in this case [at paragraph 148]:
In my opinion, had the health and safety officer approached the arming issue from subsection 145(1), his intervention could have proven to be more appropriate, effective and beneficial to everybody involved in this case. Having approached it from subsection 145(2) of the Code, as we will see, will frustrate the employees in this case.
[23]According to Mr. Cadieux, by proceeding under subsection 145(2), Mr. Grundie invoked a "provision that is highly specific in that it deals with a restrictive concept that has been set at a very high standard . . . . The concept of `danger' as defined in the Code is unique in that it only applies in exceptional circumstances" (paragraph 150). Mr. Cadieux was unprepared to find a "danger" in this case.
[24]However, Mr. Cadieux was of the opinion that section 124 "is sufficiently broad in scope to cover all professions where `intentionality', or the unpredictability of human behaviour, is the predominant element of the work" (paragraph 198). He found that the law enforcement activities of park wardens involved intentionality and the unpredictability of human behaviour. With respect, if that was his view, he should have proceeded to determine the complaint under section 124 and, if necessary, issue a direction under subsection 145(1).
[25]Mr. Cadieux did not set forth the criteria he would have considered had he assessed the matter under section 124. It is not for this Court to prescribe those criteria. However, I would observe that section 122.1 [as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 1] provides that the purpose of Part II of the Code is to prevent injury occurring in the course of employment and that section 122.2 [as enacted by S.C. 2000, c. 20, s. 3] provides that in appropriate cases, protective measures including the provision of personal protective equipment, devices or materials are to be provided. Sections 122.1 and 122.2 state:
122.1 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.
122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.
[26]At one time it was questionable whether an appeals officer could proceed under subsection 145(1) when a health and safety officer had made a previous determination under subsection 145(2). See Federal Marine Terminals Ltd., Division of Fednav Ltd. v. Longshoremen's Union, Local 375 (2000), 192 F.T.R. 1 (F.C.T.D.); affirmed (2001), 213 F.T.R. 59 (F.C.A.). However, subsequent to that decision, the Code was amended by the addition of subsection 145.1(2) [as enacted idem, s. 14] which provides:
145.1 . . .
(2) For the purposes of sections 146 to 146.5, an appeals officer has all of the powers, duties and immunity of a health and safety officer.
[27]Under section 146.1 [as enacted idem], an appeals officer may "vary, rescind or confirm" [as enacted idem] a direction of a health and safety officer. If a health and safety officer has made a direction under subsection 145(2) that the appeals officer considers inappropriate, he may rescind that direction. However, because he now has all the powers of a health and safety officer, he may also vary it to provide for what he considers the health and safety officer should have directed.
[28]An appeal before an appeals officer is de novo. Under section 146.2 [as enacted idem], the appeals officer may summon and enforce the attendance of witnesses, receive and accept any evidence and information on oath, affidavit or otherwise that he sees fit, whether or not admissible in a court of law, examine records and make inquiries as he considers necessary. In view of these wide powers and the addition of subsection 145.1(2), there is no rationale that would justify precluding an appeals officer from making a determination under subsection 145(1), if he finds a contravention of Part II of the Code, notwithstanding that the health and safety officer had issued a direction under subsection 145(2).
[29]In this case, it was patently unreasonable for Mr. Cadieux not to have assessed the facts before him pursuant to section 124 and if he considered it appropriate, to issue a direction under subsection 145(1).
| Mr. Cadieux's "danger" Analysis |
[30]The question that Mr. Cadieux considered was whether, without sidearms, park wardens performing law enforcement activities were in "danger" as that term is defined in the Code. The definition is found in subsection 122(1):
122. (1) . . .
"danger" means any existing or potential haz ard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;
[31]Mr. Cadieux found that the definition of danger in the Code was not met for the following reasons:
1. There were no facts to support the allegation of danger and therefore danger could not be established objectively (paragraph 152);
2. Assaults on park wardens could take place at any time but it could not be reliably established when or under what conditions this would happen; therefore the possibility of assaults is hypothetical (paragraph 153);
3. The who, what, when, where and under what circumstances are missing. This is because the argument is based on the unpredictability of human behaviour which is, by nature, hypothetical and speculative (paragraph 155);
4. Anecdotal evidence of exposure to violence only confirms inherent risk in law enforcement duties. It does not help to decide the existence of danger as defined in the Code (paragraph 161);
5. It is not possible to look into the past to determine a present or a future danger (paragraph 162);
6. The risk has already been mitigated by the provision of reasonable protective equipment (paragraph 170);
7. With respect to vehicle stops and the existence of visitors with criminal records in parks, one cannot reach a conclusion of danger as defined in the Code in the absence of specific evidence (paragraphs 173 and 174);
8. Studies recommending sidearms are useful for a risk assessment but not to establish danger (paragraph 175);
9. There is no evidence that park wardens ever faced grievous bodily harm. Potential situations of grievous bodily harm are a legitimate concern. However, the absence of positive knowledge that grievous bodily harm will occur does not accord with the definition of "danger" in the Code (paragraph 177);
10. Although the bearing of sidearms is close to an industry standard, the industry standard itself cannot justify a finding of "danger" (paragraph 183); and
11. Mr. Grundie did not have regard for the requirement of "reasonable expectation." His findings were based on hypotheses. It was not established that injury would occur immediately upon exposure to current or future law enforcement activities (paragraph 196).
[32]I have considerable difficulty understanding Mr. Cadieux's reasoning. I cite a few examples of the difficulty. On the one hand he says that facts are missing to support Mr. Martin's allegations of danger and that therefore such allegations are hypothetical and speculative. On the other hand he says that anecdotal evidence of exposure to violence is not helpful and indeed that "look[ing] into the past to declare that a `danger' as defined in the Code exists" (paragraph 162) is not authorized.
[33]Mr. Cadieux finds that the risk of injury, which is part and parcel of the job of a park warden, has been mitigated effectively through specialized knowledge and training and by the provision of personal protective equipment. He does not explain why further mitigative measures, such as the provision of a sidearm, would not reduce the risk of injury further.
[34]Mr. Cadieux says that there is no evidence park wardens were ever faced with grievous bodily harm on the job. It is difficult to square this position with his earlier statement that evidence of past occurrence is not helpful and cannot be used to justify a finding of danger. He also says that there is no evidence such a situation would occur in the future. He does not explain what would satisfy the evidentiary requirement that he says must be met.
[35]Because law enforcement activity inherently involves the unpredictability of human behaviour, Mr. Cadieux finds that it cannot constitute a "danger" within the meaning of the definition. This would exclude a finding of "danger" in respect of any law enforcement activity generally. There is no explanation as to why, categorically, this would be the case.
[36]In summary, it is difficult to see how Mr. Cadieux leaves any room for evidence of any sort that would prove a danger within the meaning of the Code in these circumstances. Positive anecdotal experience of the past is rejected. Negative anecdotal experience is accepted. Evidence of risk of injury that could pertain to the future is rejected as being hypothetical or speculative.
[37]I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.
[38]In conducting a "danger" analysis, Mr. Cadieux was required to apply the definition of "danger" to the facts in evidence before him. He was required to consider potential hazard as well as future activity. In treating any evidence about potential hazard and future activity as being irrelevant, hypothetical or speculative, he was foreclosing the possibility of any evidence satisfying the definition.
[39]Mr. Cadieux says that section 124 and subsection 145(1) are more appropriate provisions of the Code to apply in this case. That may well be so. But it is by no means obvious that a finding of danger and directions under subsection 145(2) are absolutely foreclosed, as his reasons imply.
[40]Mr. Cadieux had evidence before him:
1. Of anecdotal past incidents involving park wardens, albeit none of which involve grievous bodily harm or death;
2. That park wardens were issued bulletproof vests, batons, pepper spray and long-arms by Parks Canada; and
3. That the job description of park wardens:
| (a) require them to act as peace officers, |
| (b) require them to conduct difficult and complex special law enforcement activities which include participating in raids, searching for physical evidence and clues, seizing exhibits, securing and serving warrants and making arrests, |
| (c) require them to be prepared for frequent periods of intense concentration when involved in fast-moving, high risk enforcement situations, and |
| (d) says that park wardens are at risk of physical assaults, serious injury and possible death when engaged in enforcement duties and may be engaged in physical confrontations with violators who can be hostile, dangerous and armed with a weapon. |
[41]This is all evidence that should have been taken into account by Mr. Cadieux in assessing the question of danger. It is evidence that should have been weighed by Mr. Cadieux in deciding whether Mr. Martin's complaint was justified.
[42]It is not for this Court to weigh that evidence or to come to any conclusion about whether the evidence rose to the level of a reasonable expectation of injury, or indeed whether park wardens should be issued handguns. That is for the appeals officer to determine. However, this Court is required to determine whether the appeals officer had regard to relevant evidence. The failure to take account of relevant evidence by him in this case was patently unreasonable.
CONCLUSION
[43]Because Mr. Cadieux failed to apply provisions of Part II of the Canada Labour Code, which he determined were applicable to this case, I find his decision to be patently unreasonable. It was also patently unreasonable for him to have failed to take account of relevant evidence. I would allow the appeal with costs here and in the Federal Court, set aside the decisions of the Federal Court and Mr. Cadieux and remit the matter to the appeals officer for redetermination.
Noël J.A.: I agree.
Sexton J.A.: I agree.