A-277-85
Alberto Timpauer (Applicant)
v.
Air Canada and Canada Labour Relations Board
(Respondents)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Toronto, February 19; Ottawa, March 19,
1986.
Labour relations — Safety officer ruling tobacco smoke not
constituting "imminent danger" to applicant's health within
meaning of Code — Ruling confirmed by Board — No "immi-
nent danger" — Board's interpretation of imminent danger not
patently unreasonable — No excess of jurisdiction — Court
cautioning against unwarranted interference with decisions of
specialized statutory tribunals — Board's refusal to hear
evidence of applicant's physician and allergist amounting to
denial of natural justice Duty of Board, notwithstanding s.
82.1(9) of Code, to hear all relevant evidence and determine
facts before deciding matter according to its interpretation of
"imminent danger" — Application to review and set aside
Board's decision allowed — Canada Labour Code, R.S.C.
1970, c. L-1, ss. 82.1 (as enacted by S.C. 1977-78, c. 27, s. 28),
122 (as am. idem, s. 43) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28(1)(a).
Judicial review — Applications to review — Labour rela
tions — Board confirming safety officer's finding tobacco
smoke in workplace not "imminent danger" to health —
Refusal to consider medical and scientific evidence on long-
term impact of tobacco smoke not going to jurisdiction of
Board — Error of law in interpreting "imminent danger" not
justifying Court intervention — Interpretation not unreason
able — To be respected considering Board's specialized
knowledge — Board not exceeding jurisdiction in considering
delay in invoking statute — Denial of natural justice in refusal
to hear evidence of medical experts as to immediate impact of
smoke on applicant's health — Rejected evidence possibly of
critical importance — Tribunal may not say to party evidence
to be called cannot assist and decide case without hearing it —
Only after hearing all relevant evidence either party wished to
adduce could Board determine facts and decide merits on basis
of its Code interpretation — Application allowed — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 82.1 (as enacted by S.C.
1977-78, c. 27, s. 28), 122 (as am. idem, s. 43) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).
This is an application to review and set aside a decision of the
Canada Labour Relations Board which confirmed the finding
of a safety officer that the presence of tobacco smoke in the
applicant's workplace did not constitute an "imminent danger"
to his health within the meaning of section 82.1 of the Canada
Labour Code. According to the Board, a situation of imminent
danger exists where a person has reasonable cause to believe
that he is to be actually and immediately harmed and must at
once remove himself from the scene to avoid danger. Applying
that interpretation, the Board ruled that the applicant had not
been in imminent danger on the day he refused to work
claiming that the tobacco smoke present constituted an immi
nent danger to his health. The Board found justification for its
conclusion in the fact that the applicant had intended to invoke
the provision over a considerable period of time and had even
delayed doing so from Friday to Monday so as to minimize the
inconvenience to his employer, Air Canada. The applicant
argues that the Board exceeded its jurisdiction and failed to
observe a principle of natural justice.
Held, the application should be allowed.
In exercising its jurisdictional powers under subsection
82.1(9) of the Code, the Board had to decide whether the safety
officer was right in concluding that an "imminent danger" did
not exist. A mere error of law in the Board's interpretation is
not sufficient for this Court to intervene; it had to be shown
that the Board's interpretation was patently unreasonable.
The Court could not come to such a conclusion.
The term "imminent danger" is not defined in the legislation
and is not one of art. The Court found that the Board's
interpretation should be respected in view of the Board's spe
cialized knowledge. That finding was reinforced by several
Supreme Court decisions which caution against unwarranted
interference with the decisions of specialized statutory tri
bunals. In view of the Board's interpretation, it could not be
said that the Board erred in refusing to consider medical and
scientific evidence as to the long-term impact of tobacco smoke
and in confining its inquiry to the impact of smoke upon the
applicant's own health.
Furthermore, the Board did not exceed its jurisdiction in
considering the applicant's delay in invoking the statute or in
predicting the possible effect of a decision in the applicant's
favour upon other employees within federal labour relations
jurisdiction. Those considerations were not necessary to its
decision to confirm the safety officer's ruling.
The applicant's argument that he was denied natural justice
on the ground that he was refused permission to call certain
witnesses should be accepted. Although the Board is command
ed by subsection 82.1(9) of the Code to proceed "without delay
and in a summary way", it remained obliged to inquire into the
facts and to hear both sides to the dispute before deciding the
matter according to its interpretation of "imminent danger".
The Board could not properly decide the impact of the smoke
upon the health of the applicant by relying simply on the
description the applicant gave of his reaction to smoke. The
applicant's physician and allergist, with their special skills and
knowledge, might have added a dimension of critical impor
tance. By refusing to hear them, the Board denied the applicant
natural justice. A tribunal's duty is to hear the witnesses and to
listen to their evidence. When a party wishes to call further
evidence, it is never possible for the tribunal to say "The
evidence which is to be called cannot assist us further and we
will now decide against you without hearing it".
The Board's submission that even if natural justice had been
denied, that denial arose out of its interpretation of the phrase
"imminent danger" and as that interpretation is not patently
unreasonable this Court cannot interfere, was rejected. The
Supreme Court of Canada decision in Bibeault et al. v. McCaf-
frey on which the Board relied, was distinguished on the ground
that there was no room in Bibeault for an argument that
natural justice had been denied. In the present case, in order to
decide whether the circumstances disclosed the existence of an
"imminent danger", the Board had first to hear all the relevant
evidence which either party wished to adduce and then to
determine the facts.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Bibeault et al. v. McCaffrey, [ 1984] 1 S.C.R. 176.
CONSIDERED:
Fraser v. Public Service Staff Relations Board, [1985] 2
S.C.R. 455; (1986), 63 N.R. 161; Vye v. Vye, [1969] 2
All E.R. 29 (P.D.A.); Syndicat des employés de produc
tion du Québec et de l'Acadie v. Canada Labour Rela
tions Board et al., [1984] 2 S.C.R. 412.
REFERRED TO:
Eastern Provincial Airways Limited v. Canada Labour
Relations Board, [1984] 1 F.C. 732 (C.A.); Service
Employees' International Union, Local No. 333 v. Nipa-
win District Staff Nurses Association et al., [1975] 1
S.C.R. 382; Canadian Union of Public Employees, Local
963 v. New Brunswick Liquor Corporation, [1979] 2
S.C.R. 227; Teamsters Union, Local 938 v. Massicotte et
al., [1982] 1 S.C.R. 710; National Bank of Canada v.
Retail Clerks' International Union et al., [1984] 1 S.C.R.
269.
COUNSEL:
Lewis Eisen and David Keeshan for applicant.
Guy L. Poppe, G. Delisle and K. Edward for
respondent Air Canada.
Dianne Pothier for respondent Canada
Labour Relations Board.
SOLICITORS:
Lewis Eisen, Toronto, for applicant.
Air Canada, Toronto, on its own behalf.
Canada Labour Relations Board, Ottawa, on
its own behalf.
The following are the reasons for judgment
rendered in English by
STONE J.: The applicant is employed by Air
Canada. He is against tobacco smoking in his
workplace. He considers it injurious to his health.
He brings this application pursuant to paragraph
28(1)(a) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] to review and set aside a
decision of the respondent Board ("the Board").
That decision confirmed the finding of a safety
officer acting pursuant to the Canada Labour
Code [R.S.C. 1970, c. L-1] to the effect that the
presence of tobacco smoke in the applicant's work
place during the afternoon shift of January 28,
1985 did not constitute an "imminent danger" to
his health within the meaning of section 82.1 of
the Code [as enacted by S.C. 1977-78, c. 27, s.
28].
The applicant is a lead station attendant in the
international baggage area of Terminal 2 at
Toronto's Lester B. Pearson International Airport.
That area includes a large room of about 400 feet
by 40 feet. One corner is divided into a lunch room
and two small offices. Ten large doors opening
onto the tarmac allow for the ingress and egress of
baggage trains. Baggage is handled in the large
room and in an adjoining area of the tarmac where
several enclosed structures are located. The
number of persons employed in the baggage area
average 120. They work in two shifts. The appli
cant directs a crew of station attendants, the
number of which varies between 28 and 40
depending on whether they are working the morn
ing or afternoon shift.
Smoking is permitted during working hours in
the baggage room and offices as well as in the
exterior structures. Concerning the presence of
smoke in the baggage room itself, the Board found
at page 4 of its reasons for decision:
Only a minority (but a large minority) of employees smoke
while in the large baggage room. Because of their numbers,
however, there is almost always at least one person smoking.
The air in the room is subject to both mechanical and natural
ventilation, but the extent to which this is actually effective in
eliminating smoke, the smell of smoke or the various com
pounds that are produced by the burning of tobacco could not
be precisely pinpointed for the Board.
The enclosed assigment and supervisors' offices were described
as tending to be rather foul in their atmospheres due to the
smoking of people who work in them. The ventilation is almost
non-existent. A similar situation prevails in the trailer-like
shelters outside.
In the months preceding the incident the appli
cant sought to convince his employer that smoking
should be banned altogether. His reaction to
smoke was described by the Board as follows at
page 5 of its reasons:
He testified that it is usual for him to suffer an unpleasant
reaction to tobacco smoke. His eyes become red and discharge
tears, his sinuses become painful and he secretes a considerable
amount of mucus. Often he has a bad headache by the time he
concludes his working day. These problems do clear up within
an hour or less of leaving the smoky workplace. On one
occasion he developed a severe nosebleed and had to go to the
hospital for treatment.
The incident which triggered the present contro
versy occurred soon after the applicant arrived at
his workplace for the afternoon shift of January
28, 1985. The Board describes what took place at
that time at pages 5 and 6 of its reasons:
He arrived at work at one p.m. on Monday, January 28, and
noted the "foul smell of cigar smoke" in the supervisors' office.
He had been planning to invoke the "imminent danger" section
of the Code for several days. In fact, he had thought about
doing so on the previous Friday but then had decided not to
because safety officers might not be readily available. In addi
tion, he felt Monday would be a better day because the
terminal is less busy and Air Canada would be less inconve
nienced by his refusal to work. In any case, after he had
smelled the cigar smoke, somebody lit up a cigaret [sic] in his
presence. That was enough. He refused to work, claiming that
the tobacco smoke present constituted an imminent danger to
his health.
The "imminent danger" section of the Code
invoked by the applicant is section 82.1. It contains
a rather lengthy and detailed set of provisions
concerning the refusal of a person to work at his
job and the steps that are to be taken in such an
eventuality. Its provisions in full read:
82.1 (1) Where a person employed upon or in connection
with the operation of any federal work, undertaking or business
has reasonable cause to believe that
(a) the use or operation of a machine, device or thing would
constitute an imminent danger to the safety or health of
himself or another employee, or
(b) a condition exists in any place that would constitute an
imminent danger to his own safety or health,
that person may refuse to use or operate the machine, device or
thing or to work in the place.
(2) Where an employee refuses to use or operate a machine,
device or thing or to work in a place pursuant to subsection (1),
he shall forthwith report the circumstances of the matter to his
employer or the person having control or direction over him and
to the safety and health committee, if any, established pursuant
to section 84.1 for the work, undertaking or business, or part
thereof, in which he works.
(3) An employer or a person having control or direction over
an employee shall forthwith on receipt of a report under
subsection (2) investigate the report in the presence of the
employee who made the report and in the presence of
(a) at least one member of the safety and health committee,
if any, to which a report was made in respect of the same
matter pursuant to subsection (2) who does not exercise
managerial functions;
(b) a person authorized by the trade union, if any, that
represents the employee; or
(c) where no safety or health committee has been established
for the work, undertaking or business, or part thereof, in
which the employee works and where the employee is not
represented by a trade union, at least one person selected by
the employee.
(4) Where an employer or a person having control or direc
tion over an employee disputes a report made to him pursuant
to subsection (2) by an employee or where the employer or such
person takes steps to make the machine, device or thing or the
place in respect of which such report was made safe, and the
employee has a reasonable cause to believe that
(a) the use or operation of the machine, device or thing
would constitute or continue to constitute an imminent
danger to the safety or health of himself or another
employee, or
(b) a condition exists or continues to exist in the place that
would constitute an imminent danger to his own safety or
health,
the employee may continue to refuse to use or operate the
machine, device or thing or to work in the place.
(5) Where an employee continues to refuse to use or operate
a machine, device or thing or to work in a place pursuant to
subsection (4), the employer or person having control or direc
tion over the employee and the employee shall each forthwith
notify a safety officer, and the safety officer shall forthwith, on
receipt of either notification, investigate or cause another safety
officer to investigate the matter in the presence of the employer
or the person having control over the employee and the
employee or another person selected by the employee.
(6) A safety officer shall, on completion of an investigation
made pursuant to subsection (5), decide whether or not
(a) the use or operation of the machine, device or thing in
respect of which the investigation was made would constitute
an imminent danger to the safety or health of any employee,
or
(b) a condition exists in the place in respect of which the
investigation was made that would constitute an imminent
danger to the health or safety of the employee referred to in
subsection (5),
and he shall forthwith notify any person who notified him
under subsection (5) of his decision.
(7) Where a safety officer decides pursuant to subsection (6)
that the use or operation of a machine, device or thing would
constitute an imminent danger to the health or safety of an
employee or that a condition exists in a place that would
constitute an imminent danger to the health or safety of an
employee, he shall give such direction under subsection 94(1)
as he considers appropriate, and an employee may continue to
refuse to use or operate the machine, device or thing or to work
in the place until the direction is complied with or until it is
varied or rescinded under subsection 95(2).
(8) Where a safety officer decides pursuant to subsection (6)
that the use or operation of a machine, device or thing would
not constitute an imminent danger to the health or safety of an
employee or that a condition does not exist in a place that
would constitute an imminent danger to the health or safety of
an employee, an employee is not entitled under this section to
continue to refuse to use or operate the machine, device or
thing or to work in the place, but he may, by notice in writing
given within seven days of receiving notice of the decision under
subsection (6), require the safety officer to refer his decision to
the Canada Labour Relations Board, and thereupon the safety
officer shall refer the decision to the Canada Labour Relations
Board.
(9) The Canada Labour Relations Board shall, where a
decision of a safety officer is referred to it pursuant to subsec
tion (8), inquire into the circumstances of the decision and the
reasons therefor without delay and in a summary way, and
(a) confirm the decision; or
(b) give any direction that it considers appropriate in respect
of the machine, device, thing or place in respect of which the
decision was made that a safety officer is required or entitled
to give under subsection 94(1) in respect of a place, matter or
thing that he considers constitutes a source of imminent
danger to the safety or health of persons employed therein or
in connection with the operation thereof.
(10) Where the Canada Labour Relations Board gives a
direction under subsection (9), it shall cause to be affixed to or
near the machine, device, thing or place in respect of which the
direction is given a notice in the form prescribed by the
Minister, and no person shall remove the notice unless author
ized by a safety officer or the Canada Labour Relations Board.
(11) Where the Canada Labour Relations Board directs,
pursuant to subsection (9), that a machine, device, thing or
place not be used until its directions are complied with, the
employer or person in charge thereof shall discontinue the use
thereof, and no person shall use such machine, device, thing or
place until the directions are complied with, but nothing in this
subsection prevents the doing of any work or thing necessary
for the proper compliance therewith.
(12) For the purposes of this section,
(a) where the use or operation of a machine, device or thing
in a particular condition or circumstance is normal for an
employee having a particular occupation, or where an
employee would normally in the course of his employment
use or operate a machine, device or thing in a particular
condition or circumstance, that use or operation of the
machine, device or thing by the employee does not constitute
an imminent danger to the safety or health of the employee
or any other employee;
(b) where an employee having a particular occupation would
normally work in a place in a particular condition or circum
stance or where an employee would normally in the course of
his employment work in a place in a particular condition or
circumstance, that condition or circumstance in the place
does not constitute an imminent danger to the safety or
health of the employee; and
(c) imminent danger to the health and safety of an employee
includes a condition in any place where any radiation safety
level set by either the federal or provincial government has
been exceeded.
When the dispute could not be resolved, it was
referred for investigation to a safety officer pursu
ant to subsection 82.1(5) of the Code. The safety
officer (Mr. Monteith) arrived at the workplace
during the same afternoon. He consulted the appli
cant and three members of the supervisory staff.
He also discussed the matter with an industrial
hygiene engineer attached to the OSH [Occupa-
tional Safety and Health] Branch in Ottawa. He
decided that no situation of "imminent danger"
had existed and advised the applicant accordingly.
That conclusion appears in his written report of
February 6, 1985:
As a result of investigating the refusal to work incident in the
Module M Baggage Room operation, it was concluded that a
situation of imminent danger did not exist.
Shortly afterward, the applicant invoked subsec
tion 82.1(8) of the Code thereby requiring that the
report be referred to the Board for inquiry into
"the circumstances of the decision and the reasons
therefor without delay and in a summary way" as
provided in subsection 82.1(9). Arrangements
were soon made to hear the parties at Toronto
where the hearing took place on March 6, 1985.
The reasons for the Board's decision confirming
that of the safety officer are dated March 14,
1985. On the question of the meaning to be given
the term "imminent danger" the Board, after
citing earlier decisions of its own, had this to say at
page 8 of its reasons:
To put it simplistically, one is in a situation of imminent danger
where he or she has reasonable cause to believe that he or she is
about to be actually and immediately harmed and he or she
must at once remove himself or herself from the scene to avoid
the danger. Except where there are established exposure limits,
the provision was not intended by the legislator to be applied at
some intermediate stage in the long build-up of conditions and
circumstances which, at a certain climax, might indeed present
a real danger to safety and health. The imminent danger
provision of the Code is designed to provide protection to
employees who perceive that in the here and now the roof is
going to fall in on them and they must immediately get out of
the way to save themselves. It is not and was not intended to be
a recourse for those who fear that there is something in the
workplace, not subject to established exposure limits, the
effects of which over time and cummulatively [sic] may be
suspected of ultimately triggering an adverse situation in the
body.
Applying that test to the circumstances before it,
the Board concluded at pages 9 and 10 of its
reasons:
He was not in imminent danger on January 28, 1985 as the
term has come to be defined and applied. Uncomfortable,
certainly, and understandably concerned about the long-term
impact of tobacco smoke on his health. That he was not in
"imminent danger" within the meaning of the Code is demon
strated by the fact that he contemplated over a considerable
period of time invoking the provision. He even delayed doing so
from Friday to Monday so as to minimize any inconvenience to
his employer. This is not what imminent danger is all about.
Moreover, he viewed his use of the provision on Monday as a
final resort, other efforts to gain the kind of action he sought
having thus far failed. However, the invocation of the right to
refuse work is not a "last resort" in that sense, even if it does
have the effect of focussing publicity on the particular com
plaint. Over several months, Mr. Timpauer had had dealinga
with Labour Canada, particularly Mr. Monteith, and his dis
satisfaction with what was being done could have been taken to
the latter's superiors in the Department, even to the Minister
himself, so that a policy or program of general application
could have been considered. (There is no doubt that this whole
matter is going to be high on the agenda of safety and health
regulators for the foreseeable future). That is the sort of "last
resort" activity that seems called for. One does not invoke the
imminent danger provision when one is fed up. One does invoke
it, as has been indicated, when one believes the roof is about to
fall in and prudence demands departure.
The applicant attacks the Board's decision on
two grounds. The first alleges a failure to observe
a principle of natural justice in the conduct of the
inquiry. The second asserts that it exceeded its
jurisdiction in a number of ways. It is said, too,
that in interpreting the term "imminent danger" in
the way that it did, the Board embarked on an
inquiry not remitted to it. These ways of attacking
the Board's decision were no doubt influenced by
the fact that the following privative clause is found
in section 122 of the Code [as am. by S.C. 1977-
78, c. 27, s. 43]:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with paragraph 28(1)(a) of the
Federal Court Act.
(2) Except as permitted by subsection (1), no order, decision
or proceeding of the Board made or carried on under or
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of
any court, whether by way of injunction, certiorari, prohibi
tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or
proceeding is beyond the jurisdiction of the Board to make or
carry on or that, in the course of any proceeding, the Board for
any reason exceeded or lost its jurisdiction.
Paragraph 28(1)(a) of the Federal Court Act itself
provides:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
It is apparent, and indeed conceded, that a deci
sion of the Board is beyond the review powers of
this Court except where it is shown that natural
justice has been denied or that the Board exceeded
or refused to exercise its jurisdiction. This Court
cannot otherwise intervene. It remains therefore to
consider whether the applicant has brought for
ward a basis on which to rest the relief he seeks on
this application.
JURISDICTION
I deal first with the issue of jurisdiction. The
first argument made here is that the Board should
have considered medical and scientific evidence in
determining whether or not there was "imminent
danger" to the health of the applicant. At page 2
of its reasons the Board made it clear that it
considered such evidence was, or if admitted would
be, irrelevant. It said:
It was also made clear that the inquiry was quite specifically
directed at Mr. Timpauer's claim of being in imminent danger
on January 28 because of tobacco smoke at the workplace and
not into any generalized question arising in connection with
rights of non-smokers, however much one might sympathize
with their particular point of view. The parties were advised
then and at several points during the inquiry that it would be
neither useful nor relevant to a determination of the specific
question if the Board were subjected to the conflicting opinions
of scientific experts as to the effects of side-stream tobacco
smoke generally upon the human body, experts whose knowl
edge both of Mr. Timpauer and of his workplace would prob
ably be limited at best.
It is also argued that the Board should not have
taken into consideration either the applicant's
delay in invoking the refusal to work provisions of
the Code or the possible effect of a decision in his
favour upon other employers within federal labour
relations jurisdiction. Finally, it is argued that the
Board should have dealt with the issue of smoke in
the applicant's workplace generally rather than
limit its inquiry to the impact of smoke on his
health alone. I have already quoted the Board's
views on the subject of delay in invoking the
protection of the Code. Its views on the possible
impact of a decision in favour of the applicant
upon other employers appear at pages 10 and 11 of
the reasons:
However, any effort to use Section 82.1 of the Canada Labour
Code or this Board to force that trend seems misplaced. On the
one hand, Mr. Timpauer's position undoubtedly has merit in a
broad social and health sense. But it does not have merit within
the strict meaning of the Canada Labour Code. However, were
the Board to have found that it was meritorious in the latter
sense, we would not have been adjudicating, we would in fact
have been legislating a social revolution. For, an order to Air
Canada to ban smoking in the workplace would quickly become
applied to all other employers within federal industrial relations
jurisdiction. That may not be a bad outcome somewhere in the
future but it is not for the Canada Labour Relations Board to
play the role of legislator of significant social change; that is
the bailiwick of the Government and of Parliament.
I do not regard the refusal of the Board to
consider medical and scientific evidence as a
matter that went to its jurisdiction. Some such
evidence was received but more still, as we shall
see presently, was refused. I shall deal with that
refusal with particularity in due course. Nor do I
think that the Board erred in confining its inquiry
to the impact of the smoke upon the applicant's
own health. It seems to me that the Board's views
on these matters arose from the interpretation it
gave the statutory term "imminent danger". Its
jurisdictional powers as such are found in subsec
tion 82.1(9) of the Code. In exercising them the
Board had to decide whether the safety officer was
right in concluding that an "imminent danger" to
the health of the applicant did not exist at the
relevant time. A mere error of law in its interpre
tation of that term would not justify the interven
tion of the Court; it would have to be shown that
the interpretation was patently unreasonable (Ser-
vice Employees' International Union, Local No.
333 v. Nipawin District Staff Nurses Association
et al., [ 1975] 1 S.C.R. 382; Canadian Union of
Public Employees, Local 963 v. New Brunswick
Liquor Corporation, [1979] 2 S.C.R. 227; Team
sters Union, Local 938 v. Massicotte et al.,
[ 1982] 1 S.C.R. 710; National Bank of Canada v.
Retail Clerks' International Union et al., [1984] 1
S.C.R. 269; Bibeault et al. v. McCaffrey, [1984] 1
S.C.R. 176; Syndicat des employés de production
du Québec et de l'Acadie v. Canada Labour Rela
tions Board et al., [1984] 2 S.C.R. 412).
I am unable to say that the Board's interpreta
tion of that term is patently unreasonable. The
term is not defined in the legislation and, certainly,
is not one of art. As the Board possesses special-
ized knowledge it seems to me that its interpreta
tion of the term should be respected. In view of
that interpretation I cannot fault the Board for
ruling out or not considering medical and scientific
evidence directed toward what it describes as "the
long-term impact of tobacco smoke" on the health
of the applicant and in limiting its inquiry to the
impact of the smoke upon the applicant's own
health. In its decisions already referred to the
Supreme Court of Canada cautioned against
unwarranted interference in the decisions of spe
cialized statutory tribunals. That Court repeated
the same caution more recently in Fraser v. Public
Service Staff Relations Board, [1985] 2 S.C.R.
455; (1986), 63 N.R., 161. At page 464 S.C.R.;
171 N.R., the Chief Justice of Canada (speaking
for the Court) had this to say:
A restrained approach to disturbing the decisions of specialized
administrative tribunals, particularly in the context of labour
relations, is essential if the courts are to respect the intentions
and policies of Parliament and the provincial legislatures in
establishing such tribunals: see Service Employees' Interna
tional Union, Local No. 333 v. Nipawin District Staff Nurses
Association, [1975] 1 S.C.R. 382, and Canadian Union of
Public Employees, Local 963 v. New Brunswick Liquor Corpo
ration, [1979] 2 S.C.R. 227.
In summing up the position counsel submitted, on
the basis of the decided cases, that the Board had
"a right to be wrong". I personally find the expres
sion unfortunate and even somewhat offensive. I
would prefer to say simply that unless the Board's
interpretation of the term "imminent danger"
could be shown to be a patently unreasonable one,
it is immunized from judicial review.
Nor am I able to say that the Board exceeded its
jurisdiction by considering the applicant's delay in
invoking the statute or in predicting the possible
impact of a decision the other way on other
employers under federal industrial relations juris
diction. It is apparent, in my view, that the Board
arrived at its conclusion independently of those
considerations and, therefore, that they were not
necessary to its decision to confirm the decision of
the safety officer. The principle I have in mind is
the one applied by Beetz J. in the Syndicat case
(supra). Although it was concerned with an error
on a jurisdictional provision I think the same
reasoning may be applied here as well. He said (at
page 437):
It should further be mentioned that an error made by an
administrative tribunal on a provision conferring jurisdiction
will usually, though not necessarily, involve an excess of juris
diction or a refusal to exercise it. For example, an error made
in this regard in an obiter dictum, which does not have the
effect of misleading the administrative tribunal which commits
it into exercising a power which it is denied by law, or failing to
exercise a power imposed on it by law, would not be a jurisdic
tional error forming a basis for judicial review.
NATURAL JUSTICE
The applicant sought to support his argument
that natural justice had been denied from the fact
that at the inquiry of March 6, 1985 he was not
permitted to call certain witnesses. The identity of
those witnesses and the nature of the evidence he
wished to adduce through them is set forth in
paragraph 4 of his affidavit sworn to on June 18,
1985 and made part of the record before us. It
reads:
4. At the hearing of this matter, my counsel advised the Board
that he intended to call the following witnesses:
i) Dr. Robert Grossman, my personal physician; to testify as
to my general medical condition, and to his opinion of the
medical effects of the smoke upon me personally;
ii) Dr. Donald Wigle, of the Non-Communicable Disease
Division, Bureau of Epidemiology, Health Protection Branch,
Department of Health and Welfare Canada, to testify as to the
Department's position on the smoke issue, and what he would
have advised Labour Canada had he been consulted;
iii) Dr. James Repace, an expert on ventilation and clean air;
to testify that the ventilation solution proposed by Air Canada
is ineffective; and
iv) an allergy specialist, possibly one of Dr. Lawrence Rosen
or Dr. Raymond Stein, to testify as to the medical implications
of my reactions with specific regard to allergy.
The Board disposed of this request at page 7 of its
reasons in the following terms:
Mr. Timpauer's counsel advised the Board that he had
arranged for several experts to come to testify, among other
things, as to the harmful effects of the various compounds
produced by the combustion of tobacco, on the inadequacy of
ventilation as a method of removing such materials from the
atmosphere and as to other matters relating to the general issue
of restricting the exposure of non-smokers to tobacco smoke.
He also proposed to have Mr. Timpauer's physician come and
describe the adverse effects on Mr. Timpauer of smoke in the
workplace. As was indicated earlier, the Board decided that it
did not need to hear the various experts in order to make a
determination whether there was imminent danger within the
meaning of the Code. The Board also assured counsel that it
was prepared to accept fully Mr. Timpauer's description of his
own reaction to tobacco smoke and did not need to impose upon
the time of his physician.
A fifth expert witness, specializing in respiratory
diseases, was permitted to testify but his evidence,
apparently, did not assist the Board in coming to
its decision.
With respect, I think there is substance to this
submission. Although the Board is commanded by
subsection 82.1(9) to proceed "without delay and
in a summary way", it remained obliged to hear
both sides to the dispute before rendering its deci
sion. The decision not to hear the evidence which
the applicant wished to adduce was based on a
view that "it would be neither useful nor relevant
to a determination of the specific question" i.e.
whether there was "imminent danger" to the
applicant's health within the meaning of the Code.
As I have already said, I can find no basis for
interfering with the Board's interpretation of those
words.
On the other hand, the Board was obliged to
inquire into the facts before deciding the matter
according to that interpretation. Though it viewed
the long-term effects of tobacco smoke on his
health as irrelevant, that was no justification for
refusing to hear at least some of the evidence he
wished to adduce. I have in mind the evidence that
was to be directed to a more immediate impact of
the smoke upon the applicant's health. According
to his affidavit, the applicant's own physician
would have given "his opinion of the medical
effects of the smoke upon me personally" and the
allergy specialist would have testified "as to the
medical implications of my reactions with specific
regard to allergy". Moreover, as is pointed out at
page 5 of the Board's reasons, the applicant had
testified of being tested by his physician for allergy
to smoke and to raw tobacco and he "was found to
be decidedly allergic to both". The Board was
required to decide whether to confirm the decision
of the safety officer or to give a direction as
provided in subsection 82.1(9) of the Code. It
seems to me that it could do neither until after it
had first ascertained the facts touching the ques
tion of "imminent danger" to the applicant's
health at his workplace on January 28, 1985.
In my view, the Board could not properly decide
the impact of the smoke upon the health of the
applicant by relying simply on the description he
gave of his reaction to tobacco smoke. That evi
dence might not have told the full story. The
physician and the allergist, with their special skills
and knowledge, might have added a dimension of
critical importance. By refusing to hear their evi
dence the Board denied the applicant natural jus
tice. The fact that such evidence might not have
assisted the applicant was not a valid reason for
refusing to hear it. The remaining witnesses, it
seems to me, would have testified on matters of a
more general nature not specifically directed
toward the impact of the smoke upon the health of
the applicant at the relevant time. I do not see that
the Board's refusal to receive that evidence
involved reviewable error.
In concluding that natural justice was denied, I
am mindful of the fundamental importance in the
interest of a fair inquiry that a tribunal afford a
party the opportunity of calling his witnesses and
of otherwise making his case before disposing of
the matter one way or the other. Here, I would
refer to the broad statement of principle found in
the words of Baker J. (concurred in by Sir Jocelyn
Simon P.) in Vye v. Vye, [1969] 2 All E.R. 29
(P.D.A.). I think they are pertinent even though
they were uttered in a matter involving rather
different circumstances. The case concerned a
complaint by the wife that the husband had desert
ed her and had wilfully neglected to provide
reasonable maintenance. The justices hearing the
case dismissed it without calling upon the husband
to make answer. That was done even though coun-
sel had earlier informed the justices that he wished
to call the wife's mother as part of his case. In
dismissing the wife's complaint, the justices con
sidered that exceptional circumstances existed
which allowed them to do so and stated that "the
wife, upon the evidence, had no case in law" and
also that the mother's evidence "could not in any
way assist the court". In referring the matter back
for a proper adjudication, Baker J. put the point in
this way (at pages 30-31):
I think that the justices went completely wrong when they
directed themselves that, in very exceptional circumstances,
they could dismiss the case without hearing all the evidence for
the wife. As a matter of practice I have never heard of such a
submission being made; nor do I think that it can ever be
proper for justices to accede to such a submission, or rule that
there is no case to answer, either as a matter of law or for any
other reason before all the witnesses have been called. The duty
of a tribunal is to hear the witnesses adduced by the complai
nant, the petitioner, the plaintiff, or whoever it may be, and to
listen to their evidence. An experienced tribunal may, of course,
indicate in a particular case that the evidence in its totality does
not appear to be likely to be sufficient to establish a case, or a
defence, and the advocate, being of the same mind, may decide
that it is a waste of time to proceed further and throw in his
hand. I think, however, that a court should take such a course
only if satisfied that the advocate will agree; such occasions are
rare. But an entirely different situation arises when a party
wishes to call further evidence, and I do not think that it is ever
possible in such circumstances for a tribunal to say, in effect,
"The evidence which is to be called cannot assist us further and
we will now decide against you without hearing it". A good test
is to ask the question "Would it be proper for a tribunal to
dismiss a case on the opening?" Counsel for the husband who
made the submission to the justices accepted before us that that
would be improper. But what else were the justices doing? They
had not heard the wife's mother's evidence although they might
have heard an opening referring to it. In fact, we have been told
that counsel who then appeared for the wife was not asked to
indicate what the mother was going to say. I do not think that
it would matter whether he was or was not. If he or the wife
wished the mother to be heard, the court's duty was to hear her.
[Emphasis added.]
See also Halsbury's Laws of England, 4th ed.,
Vol. 1, paragraph 76, footnote 31, at page 94;
Wade, Administrative Law (5th ed.) 1982, at page
483; Eastern Provincial Airways Lmited v.
Canada Labour Relations Board, [1984] 1 B.C.
732 (C.A.), per Mahoney J., at page 752.
Before leaving the matter I wish also to deal
with a point addressed to us by counsel for the
Board. It is to the effect that this aspect of it does
not involve a denial of natural justice as such but,
rather, that it involves solely a question of statu
tory interpretation. In essence, counsel submits
that even if natural justice had been denied, that
denial arose out of the Board's interpretation of
the term "imminent danger" and as that interpre
tation is not patently unreasonable this Court
cannot interfere. As authority for that proposition
the decision of the Supreme Court of Canada in
the Bibeault case (supra) is relied upon. In my
view, that was an altogether different case. There,
different employees each sought to be treated as
an "interested party" within the meaning of sec
tion 32 of the Quebec Labour Code [R.S.Q. 1977,
c. C-27]. The commissioners who dealt with the
matters decided that none of them was covered by
the statute and the Labour Court agreed. On this
aspect of the case the Supreme Court of Canada
held that the decisions of the commissioners and of
the Labour Court, not being patently unreason
able, should not be interfered with. There was
therefore no room for an argument that natural
justice had been denied. As Lamer J. stated on
behalf of the Court at page 191:
As I mentioned above, suggesting an infringement of the audi
alteram partem rule in the case at bar postulates a patently
unreasonable interpretation of s. 32 L.C.
In the present case, on the other hand, even though
in my view the Board's interpretation cannot be
successfully challenged, it had yet to decide wheth
er or not the circumstances disclosed the existence
of an "imminent danger" to the health of the
applicant. To do that, it had first to hear all
relevant evidence either party wished to adduce
and then to determine the facts. Only after doing
so could it decide the merits of the matter on the
basis of its interpretation of the Code.
DISPOSITION
I would therefore allow this application, set
aside the Board's decision dated March 14, 1985
and refer the matter back to the Board for recon
sideration on the basis that before completing its
inquiry it afford the applicant the opportunity of
adducing expert evidence: (a) as to the applicant's
medical condition with particular reference to the
medical effects of smoke upon him; and (b) as to
the medical implications of the applicant's reaction
to smoke with specific regard to allergy.
HEALD J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.