A-2-86
The Queen in right of Canada as represented by
the Treasury Board (Applicant)
v.
Peter Wilson, as represented by the Public Ser
vice Alliance of Canada (Respondent)
and
Public Service Staff Relations Board (Mis -en-
cause)
INDEXED AS: CANADA (TREASURY BOARD) V. WILSON
Court of Appeal, Pratte, Mahoney and Stone
JJ.—Ottawa, September 18 and October 23, 1986.
Public service — Labour relations — Tobacco smoking in
workplace — Grievance — Dangerous Substances Safety
Standard incorporated in collective agreement — Applying
interpretation rule true intent of contractual term to be gath
ered by reading it in light of agreement as whole, apparent
passive tobacco smoke not dangerous substance within Stand
ard as latter applicable only to dangerous substances manu
factured, handled, stored, processed or used in workplace —
Financial Administration Act, R.S.C. 1970, c. F-10, s. 7(1)(g)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Atomic Energy Control Act, R.S.C. 1970, c. A-19 — Con
struction Industry Labour Relations Act, S.Q. 1968, c. 45 —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 91,
Part I, Schedule I.
In January 1984, the respondent, a clerical employee in the
Ontario Regional Office of the Department of National Health
and Welfare in Toronto, filed a grievance that his employer had
violated the Dangerous Substances Safety Standard, which had
been incorporated in the applicable collective agreement, by
allowing tobacco smoking in the workplace. The respondent
also asked that the smoke be restricted to an adequately
ventilated area separate from the workplace. In upholding the
grievance, the Adjudicator found that the "passive", "ambi-
ent", "second hand" or "sidestream" tobacco smoke was a
dangerous substance within the meaning of the Standard, that
the employer was in breach of the Standard provision (para-
graph 12) providing that dangerous substances should be con
fined as closely as possible to their source and that the employ
er was in breach of his obligation (Standard paragraph 15) to
sample and test the atmosphere in the workplace to ensure that
it did not exceed the prescribed safe limits of contamination.
This is a section 28 application to review and set aside the
Adjudicator's decision on the ground that he erred in law in
concluding that passive tobacco smoke was a dangerous sub
stance within the meaning of the Standard. In essence, it was
argued that the Adjudicator had erred in applying paragraphs
12 and 15 of the Standard because he ignored many other parts
of the Standard that point to a contrary conclusion.
Held (Mahoney J. dissenting), the application should be
allowed.
Per Stone J. (Pratte J. concurring): The issue is not whether
passive cigarette smoke in the workplace is dangerous to the
health of the respondent nor whether it is desirable to protect
him from it. The issue is whether an error in law was commit
ted in construing paragraph 12 of the Standard.
The true intent of a contractual term is to be gathered by
reading it in the light of all the different parts of the document.
The Adjudicator erred in not examining paragraph 12 in the
light of the Standard as a whole.
While it cannot be said that the Standard was intended to
apply only to dangerous substances in the context of industrial
usage of these substances, a reading of the Standard as a whole
leads to the conclusion that paragraph 12 refers to dangerous
substances whose sources are identified in the Standard, and
not to passive tobacco smoke.
Per Mahoney J. (dissenting): The issue is whether, on a fair
reading of the entire Standard, a dangerous substance is one
which is required to be worked with or is produced in the course
of operations and not one which is otherwise introduced into the
workplace. Many provisions are cast, either expressly or by
necessary implication, in terms of exposure to dangerous sub
stances either required to be used or necessarily present in the
workplace. Other provisions, however, would not be fully effec
tive if subject to such qualification. Secondhand smoke is
obviously not a dangerous substance to which all provisions of
the Standard apply, but that is not a persuasive reason to
exclude it from the application of those provisions that do
appropriately apply. The Standard is intended to reduce the
danger to employees' health from conditions extant in the
workplace. That object will not be served by constraining the
Standard in a way that excludes a dangerous substance intro
duced into the workplace by fellow employees simply because it
is introduced gratuitously rather than for the account and
benefit of the employer. The Standard therefore applies to any
dangerous substance carried by air in the workplace regardless
of source. It is neither unreasonable nor unjust to require the
employer to observe the requirements of the Standard with
respect to ambient tobacco smoke in the workplace.
CASES JUDICIALLY CONSIDERED
APPLIED:
Maunsell v. Olins, [1975] A.C. 373 (H.L.); Hillis Oil
and Sales Ltd. v. Wynn's Canada, Ltd., [1986] 1
S.C.R. 57.
REFERRED TO:
Quebec (Construction Industry Commission) v.
M.U.C.T.C., [1986] 2 S.C.R. 327, reversing (1983),
D.T.E. 83T-685 (Que. C.A.) and judgment dated Febru-
ary 12, 1979, Quebec Superior Court, Montréal, Nos.
500-05-006212-755, 500-05-012615-744, 500-05-018290-
740, not reported; The King v. Dubois, [1935] S.C.R.
378.
COUNSEL:
Robert Cousineau, Q. C., for applicant.
Andrew J. Raven and Derek Dagger for
respondent.
No one on behalf of mis -en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
Public Service Staff Relations Board,
Ottawa, for mis -en-cause.
The following are the reasons for judgment
rendered in English by
MAHONEY J. (dissenting): This application
under section 28 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] is based entirely on the
premise that the learned Deputy Chairman of the
Public Service Staff Relations Board erred in law
in concluding that "ambient", "passive" or
"second hand" tobacco smoke is a dangerous sub
stance within the contemplation of the Occupa
tional Health and Safety Standards—Dangerous
Substances Safety Standard, hereinafter "the
Standard". The finding that it is, in fact, a danger
ous substance within the textual definition of the
Standard is not challenged.
The Standard was prescribed by Treasury
Board, September 1, 1982, under authority of
paragraph 7(1)(g) of the Financial Administra
tion Act, R.S.C. 1970, c. F-10.
7. (1) ... the Treasury Board may, in the exercise of its
responsibilities in relation to personnel management ....
(g) establish and provide for the application of standards
governing physical working conditions of, and for the health
and safety of, persons employed in the public service;
A collective agreement governing the respondent's
employment was concluded February 9, 1982. It
provided, in Article 43, that it could be amended
by mutual consent. The following amendment was
adopted:
The parties hereunder endorse the occupational health and
safety standards listed below, effective April 1, 1983, and
recognize the standards as part of the collective agreements
reached between them.
TB STD 3-2 Dangerous Substances
The Standard was one of 17 so recognized by the
same document which was subscribed to, on behalf
of all their bargaining units, by five bargaining
agents, including the respondent's, as well as by
Treasury Board.
The provisions of the Standard invoked by the
respondent in his grievance are:
Application
1. This Standard applies to all Public Service Departments
and Agencies, as defined in Part I of Schedule I of the Public
Service Staff Relations Act.
Definitions (In alphabetical order)
5. In this Standard
(I) "dangerous substance" means any substance, that
because of a property it possesses, is dangerous to the safety
or health of any person who is exposed to it;
Control of Airborne Contaminants
12. Any dangerous substance that may be carried by the air
is to be confined as closely as is reasonably practicable to its
source.
13. Subject to paragraph 14, each department shall ensure
that the concentration of any dangerous substance that may be
carried by the air in any area where an employee is working
(I) does not exceed the threshold limit value recommended
by the American Conference of Governmental Industrial
Hygienists in its pamphlet "Threshold Limit Values for Air
Borne Contaminants 1976", as amended from time to time;
or
(2) conforms with any standard that follows good industrial
safety practice, and is recommended by Labour Canada or
Health and Welfare Canada.
14. Except in respect of any dangerous substance that is
assigned a Ceiling "C" value by the American Conference of
Governmental Industrial Hygienists, it is permissible for the
concentration of a dangerous substance that may be carried by
the air in the area where an employee is working to exceed the
threshold limit value described in paragraph 13 for a period of
time calculated according to a formula that
(1) is prescribed by the American Conference of Governmen
tal Industrial Hygienists; or
(2) is recommended by Labour Canada or Health and
Welfare Canada.
15. Where the atmosphere of any area in which an employee
is working is subject to contamination by a dangerous sub
stance, the atmosphere is to be sampled and tested by a
qualified person as frequently
(1) as may be necessary to ensure that the level of contami
nation does not at any time exceed the safe limits prescribed
by paragraphs 13 and 14; or
(2) as may be recommended by Labour Canada or Health
and Welfare Canada.
Paragraphs 16, 17, 18 and 19 complete the section
entitled "Control of Airborne Contaminants".
They deal with the manner the testing required by
paragraph 15 is to be conducted, the records there
of to be made and kept and protective equipment.
Paragraph 34 is the only provision of the Standard
that refers specifically to smoking.
Restricted Areas
34. Measures and precautions concerning smoking, or any
procedure or equipment the use of which in a restricted area
may cause ignition or explosion of a dangerous substance, shall
be in compliance with the requirements of the Dominion Fire
Commissioner.
The finding, by the learned Deputy Chairman,
that second hand smoke is, in fact, a dangerous
substance as defined is, as stated, not challenged.
That the Standard applied to the respondent's
place of work is likewise undisputed.
The Deputy Chairman did not in his decision
deal with the argument presented to the Court,
namely, that on a fair reading of the entire Stand
ard, a dangerous substance is one which is
required to be worked with or is produced in the
course of operations and that the Standard does
not, in law, apply to a dangerous substance which
is otherwise introduced into the workplace. If that
is so, it is certainly not expressed in the Standard
nor does paragraph 7(1)(g) of the Financial
Administration Act so limit the ambit of a stand
ard authorized to be established. It is, I think,
possible to deal fairly with the applicant's argu
ment without setting out the entire text of the
Standard.
Paragraphs 2, 3 and 4 of the Standard do limit
its application in specified cases. It does not apply
to the transportation of dangerous substances over
public highways. Applicable regulations made
under the Atomic Energy Control Act, R.S.C.
1970, c. A-19, take precedence over the Standard
and the preemptive responsibility of the Dominion
Fire Commissioner as to the fire and explosive
hazards of dangerous substances is acknowledged.
The latter limitation is reiterated by paragraph 34.
None of those limitations assist the applicant. The
respondent argued that paragraphs 2, 3 and 4 were
intended to be exhaustive of the exclusions but I do
not think that a very fair view of the matter since
the exclusions are expressed in terms of hazards
otherwise regulated and not in terms of the exclu
sion of particular dangerous substances. I likewise
reject the applicant's argument that paragraph 34
is exhaustive of the Standard's application to
smoking. The maxim, expressio unius personae vel
rei, est exclusio alterius, does not comfortably fit
either circumstance.
Paragraphs 6 and 7 require that, where there is
a choice, the least dangerous or a non-dangerous
substance shall be used. Paragraphs 8 to 11 deal
with the isolation and confinement of dangerous
substances. Paragraphs 12 to 19 deal with airborne
contaminants and have already been set out or
discussed. Paragraphs 20 to 23 deal with the warn
ing and training of personnel who may be exposed
to or use or handle a dangerous substance. Para
graph 24 requires signs to warn persons entering
any area where a dangerous substance is handled,
stored or used. Paragraphs 25 and 26 deal with
containers and their labelling; paragraphs 27 and
28 with ventilation, paragraph 29 with housekeep
ing; paragraphs 30 and 31 with emergency equip
ment; paragraphs 32 and 33 with combustible
dusts; paragraphs 35 and 36 with the use of com
pressed air; paragraphs 37 to 41 and 43 with the
general design of work places and their piping and
electrical systems; paragraph 42 with radiation
emitting devices; paragraph 44 with static elec
tricity and paragraphs 45 to 47 with the use of
explosives. Finally, paragraphs 48 and 49 deal
with medical examinations for employees exposed
to dangerous substances and the maintenance of
medical records.
Most of these provisions are cast, either express
ly or by necessary implication in terms of exposure
to dangerous substances either required to be used
or necessarily present in the workplace. That is a
natural result of their subject matter. For example,
it would make little sense to speak of the design of
a workplace, its plumbing and electrical facilities,
in the context of the exposure of employees to
dangerous substances, unless it were expected that
the design would reduce the hazards of the danger
ous substances to be used or produced there. A like
observation would be apt as to isolation, training,
warning signs and so on.
On the other hand, other provisions, by the
nature of their subject matter, would not be fully
effective if subject to such qualification. For
example:
28. Exhaust and inlet ducts for ventilation systems are to be
located and arranged so as to ensure that air contaminated with
dangerous substances does not enter areas occupied by
employees.
It is not uncommon to find the workplace of
government employees located in rented premises.
They commonly share buildings with other, non
governmental tenants. Such was, in fact, the situa
tion of the respondent's workplace. I think it would
be unreasonable to so construe the Standard as to
exclude from the application of paragraph 28 dan
gerous substances which might reach the govern
ment office from another tenant's premises
through the ventilating system.
The purpose of the Standard, as defined by
paragraph 7(1)(g) of the Financial Administra-
Lion Act, is "for the health and safety" of
employees as well as to govern their physical work
ing conditions. Secondhand tobacco smoke is a
substance dangerous to human health. Treasury
Board could have expressly excluded it from the
application of the Standard but it did not. Second
hand smoke is obviously not a dangerous substance
to which all provisions of the Standard apply but
that is not a persuasive reason to exclude it from
the application of those provisions that do appro
priately apply. The provisions as to air borne con
taminants apply both literally and on a purposive
construction of the Standard. A clear object of the
Standard is to reduce, by reasonable means, the
danger to employees' health from conditions
extant in their workplaces. That object will not be
served by constraining the Standard in a way that
excludes a dangerous substance introduced into
the workplace by fellow employees simply because
it is introduced gratuitously rather than for the
account and benefit of the employer.
The Supreme Court of Canada, in Quebec
(Construction Industry Commission) v.
M.U.C.T.C., [1986] 2 S.C.R. 327 delivered Octo-
ber 9, 1986, reversed decisions of the courts below
and held that the Construction Decree adopted
under the Construction Industry Labour Relations
Act, S.Q. 1968, c. 45, as amended, applied to
construction work done for the respondent by its
own forces. That was so notwithstanding that nei
ther the respondent nor its employees were ordi
narily engaged in the construction industry and
that the collective agreement between them pro
vided the employees with a superior package of
benefits than the decree. The Superior Court
[judgment dated February 12, 1979, Quebec Supe
rior Court, Montréal, Nos. 500-05-006212-755,
500-05-012615-744, 500-05-018290-740, not
reported] and a majority of the Quebec Court of
Appeal [(1983), D.T.E. 83T-685] had construed
the decree in light of their perception that its
purpose was to remedy abuses extant in the con
struction industry. The Supreme Court cited a
number of authorities as to the basic rule of inter
pretation which are epitomized in the words of
Duff C.J., speaking for the Court, in The King v.
Dubois, [1935] S.C.R. 378, at page 381:
The duty of the court in every case is loyally to endeavour to
ascertain the intention of the legislature; and to ascertain that
intention by reading and interpreting the language which the
legislature itself has selected for the purpose of expressing it.
To start with presumptions as to policy is, as Lord Haldane
said in Vacher & Sons Ltd. v. London Society of Compositors
([1913] A.C. 107, at 113), to enter upon a labyrinth for the
exploration of which the judge is provided with no clue.
That is, mutatis mutandus, also the basic rule for
the interpretation of a contract. Whether one ap
proaches the Standard in the present case as dele
gated legislation made in September, 1982, or as a
contractual provision adopted in April, 1983, the
basic rule for its interpretation is the same.
In its decision just summarized, the Supreme
Court adopted the following conclusion of
McCarthy J.A., who dissented in the Quebec
Court of Appeal:
[TRANSLATION] In my opinion, the position taken by appel
lant is supported by the legislation and is neither unreasonable
nor manifestly unjust. We should therefore apply the legislation
as it stands.
I find nothing in the Standard that excludes its
application to airborne contaminants emanating
from a particular source. Rather, in my respectful
opinion, it applies to any dangerous substance
carried by the air in the workplace regardless of
source. I see no rational basis whatever for excus
ing the employer from the testing requirements of
paragraphs 13 ff. of the Standard by reason of the
source of an airborne contaminant and the qualifi
cation that it be confined as close to the source as
reasonably practicable obviates any legitimate
objection that might be raised as to the application
of paragraph 12 to a dangerous substance by
reason of its source. It is neither unreasonable nor
unjust to require the employer to observe the
requirements of the Standard vis-Ã -vis ambient
tobacco smoke in the workplace.
In my opinion, the learned Deputy Chairman
did not err in law in his conclusion. I would dismiss
this section 28 application.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: This application under section 28 of
the Federal Court Act flows from the respondent's
grievance of January, 1984 that his employer had
violated the Dangerous Substances Safety Stand
ard ("the Standard") "by allowing tobacco smok
ing in the work place" and asking that the smoke
be restricted "to an adequately ventilated area
separate from the work place". On December 20,
1985 an Adjudicator acting under section 91 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35 as amended upheld the grievance. The
applicant seeks to set aside the Adjudicator's deci
sion on the ground that he erred in law. I have had
the advantage of reading in draft the reasons for
judgment prepared by Mr. Justice Mahoney
proposing dismissal of this application. As I have
reached the opposite conclusion, it is desirable that
I set forth the reasons which impel me to differ
with my colleague.
The statutory mandate' under which the Stand
ard was established is very broad. It is not limited
to establishing standards on the subject of danger
ous substances, for standards may deal with
"physical working conditions" or with "the health
and safety" of public servants. We have here
before us but one such standard. It is on the
subject of dangerous substances but we must not
thereby infer that it is intended to be exhaustive of
that subject. There appears to me ample room
' The statutory basis for the Standard is found in paragraph
7(1)(g) of the Financial Administration Act, R.S.C. 1970, c.
F-10 as amended which reads:
7. (1) Subject to the provisions of any enactment respect
ing the powers and functions of a separate employer but
notwithstanding any other provision contained in any enact
ment, the Treasury Board may, in the exercise of its respon
sibilities in relation to personnel management including its
responsibilities in relation to employer and employee rela
tions in the public service, and without limiting the generality
of sections 5 and 6,
(g) establish and provide for the application of standards
governing physical working conditions of, and for the
health and safety of, persons employed in the public
service;
within the mandate to establish as many different
standards dealing with different dangerous sub
stances as may be thought necessary or desirable.
Article 42 of the relevant collective agreement
provided for incorporation therein of this Standard
and when that was done its protections were
extended to the Clerical and Regulatory group of
employees. The Standard thus became part of the
collective agreement between the parties and must
be construed as such rather than as a statutory
instrument.
The respondent is a clerical employee. At the
time the grievance arose he was employed in the
Ontario Regional Office of the Department of
National Health and Welfare in Metropolitan
Toronto. The essence of his complaint is that he
was exposed to passive cigarette smoke at his place
of work and that this was dangerous to his health.
The Adjudicator made the following findings of
fact concerning the presence of cigarette smoke in
the respondent's working areas (Case Book, Vol.
III, pages 719b-720):
4. At the Don Mills location 17 persons (including the
grievor) were employed in the grievor's work area. The number
of persons so employed remained constant during the period
from April 1, 1983 to the date of the hearing of this case,
although several employees came and went during that time.
Between six and eight persons employed in the grievor's work
place during this period smoked. Two smokers seated within six
feet of the grievor's work location each smoked at a rate of half
a pack of cigarettes per day while on the job. In addition there
were two smokers located in the computer section, a separate
section of the branch located a short distance away from the
grievor. Most of the sixth floor at the Don Mills location was
an open office. Some, but not all, employees were separated
from others by baffles five feet in height. The grievor occupied
an area separated from other employees by a baffle. The area
occupied by the grievor's section at 789 Don Mills Road was
approximately 1500 to 1700 square feet.
5. In November 1984 the grievor's workplace was moved to
the north side of the eleventh floor at 200 Town Centre Court,
Scarborough. The grievor did not measure the space at the
Scarborough Location but he obtained a floor plan from the
Department of Public Works on which he marked the limits of
his work location (Exhibit G-5). It comprises an area of
between 1400 and 1500 square feet. A corridor runs in a
northerly direction from a reception area in the southwest
corner of the building which opens into the grievor's workplace.
This corridor is separated from the western wall of the building
by a number of offices and it passes a large conference room.
The precise number of smokers in this area is unknown.
6. In February 1985 the number of persons employed in the
grievor's section increased to 19. Of these six smoked. Later the
number of smokers dropped to four for a period of three
months and then returned to six. The six smokers were not
expected to remain. Two of them were term employees who
were to cease working at the end of September and a third
smoker was promoted to another position elsewhere.
Evidence led by the respondent at the hearing
was directed towards the danger to his health from
exposure to "passive" or "sidestream" cigarette
smoke produced by fellow employees. The evi
dence describes this sort of smoke as the fraction
of the tobacco smoke that emanates from the
burning end of a cigarette directly into the air. It is
distinguished from "mainstream" cigarette smoke
which is the smoke inhaled by the smoker directly
into the lungs and from "exhaled mainstream"
cigarette smoke which is the fraction of the main
stream smoke that is not retained in the lungs of
the smoker.
The hearing was a lengthy one, extending over
eight days of hearing time. Much of the evidence
led came from expert witnesses called by both
parties. It is discussed in great detail by the
Adjudicator. In the end he came to the following
conclusions (Case Book, Vol. III, pages 805b-806):
137. I have conducted a careful analysis and review of all of
the expert testimony and 1 have come to the conclusion that, on
a balance of probabilities, the evidence presented on behalf of
the grievor establishes the existence of a statistically significant
co-relation between exposure to passive smoke and an increased
incidence of lung cancer. As a consequence, I find that passive
tobacco smoke is a "dangerous substance" within the meaning
of the Standard.
138. Passive tobacco smoke may be carried by the air and is
therefore to be confined as closely as is reasonably practicable
to its source, pursuant to section 12 of the Standard. The
employer was in breach of this provision as it made no attempt
to confine the passive tobacco smoke present in the grievor's
workplace as closely as was reasonably practicable to its source.
The only practical means by which the employer may meet this
obligation is to provide separately ventilated areas for smokers
who are required to work in the same area as the grievor.
139. The areas in which the grievor worked were subject to
contamination by passive tobacco smoke. As a consequence, the
employer pursuant to section 15 of the Standard had an
obligation to sample and test the atmosphere in the workplace
as frequently as might be necessary to ensure that the level of
contamination did not at any time exceed the safe limits
prescribed by sections 13 and 14, or as may be recommended
by Labour Canada or Health and Welfare Canada. The evi-
dence is that the employer conducted only superficial tests of
the air quality in the grievor's workplace and, in particular,
failed to test for 4-aminobiphenyl and betanaphthylamine to
which exposure is not to be permitted " by any route—
respiratory, skin, or oral, as detected by the most sensitive
methods ", according to the threshold limit values pub
lished by the American Conference of Governmental Industrial
Hygienists which are incorporated by reference into the Stand
ard (Exhibit G-4, page 41). For these reasons I find that the
employer was in breach of section 15 of the Standard.
As I understand it the learned Adjudicator's
conclusions involved a two step process. He first
decided that passive cigarette smoke is a "danger-
ous substance" within the meaning of subpara-
graph 5(1) of the Standard and, secondly, that
paragraphs 12 and 15 had been violated. The
definition of "dangerous substance" found in sub-
paragraph 5(1) reads:
5. In this Standard
(1) "dangerous substance" means any substance, that
because of a property it possesses, is dangerous to the safety
or health of any person who is exposed to it;
Paragraphs 12 to 15 thereof read:
12. Any dangerous substance that may be carried by the air
is to be confined as closely as is reasonably practicable to its
source.
13. Subject to paragraph 14, each department shall ensure
that the concentration of any dangerous substance that may be
carried by the air in any area where an employee is working
(1) does not exceed the threshold limit value recommended
by the American Conference of Governmental Industrial
Hygienists in its pamphlet "Threshold Limit Values for Air
Borne Contaminants 1976", as amended from time to time;
or
(2) conforms with any standard that follows good insdustrial
safety practice, and is recommended by Labour Canada or
Health and Welfare Canada.
14. Except in respect of any dangerous substance that is
assigned a Ceiling "C" value by the American Conference of
Governmental Industrial Hygienists, it is permissible for the
concentration of a dangerous substance that may be carried by
the air in the area where an employee is working to exceed the
threshold limit value described in paragraph 13 for a period of
time calculated according to a formula that
(1) is prescribed by the American Conference of Governmen
tal Industrial Hygienists; or
(2) is recommended by Labour Canada or Health and
Welfare Canada.
15. Where the atmosphere of any area in which an employee
is working is subject to contamination by a dangerous sub
stance, the atmosphere is to be sampled and tested by a
qualified person as frequently
(1) as may be necessary to ensure that the level of contami
nation does not at any time exceed the safe limits prescribed
by paragraphs 13 and 14; or
(2) as may be recommended by Labour Canada or Health
and Welfare Canada.
The question we have to decide is not whether
passive cigarette smoke in the workplace is danger
ous to the health of the respondent. The learned
Adjudicator was clearly of the view that it is and
the correctness of that conclusion is not chal
lenged. On the other hand, the applicant says that
in applying paragraphs 12 and 15 the Adjudicator
erred because he ignored many other parts of the
Standard that point to a contrary conclusion. The
desirability of protecting the respondent from pas
sive cigarette smoke is not here in issue. Our
mandate is limited to that set forth in paragraph
28(1)(b) of the Federal Court Act, namely, to
deciding whether the Adjudicator "erred in law". 2
We can do neither any more nor any less. As a
violation of paragraph 15 depends upon a finding
that paragraph 12 applies, it is sufficient for us to
decide whether an error of law was committed in
construing this latter paragraph.
I wish first to set out what I consider the correct
legal approach to the task of construing the Stand
ard. It is part of a collective agreement to which
the ordinary rules of interpretation apply. I take
heed of Lord Reid's admonition that the rules of
interpretation are not to be slavishly applied. They
2 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
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
are, he said, "aids to construction, presumptions or
pointers"; they are "our servants, not our masters"
(Maunsell v. Olins, [1975] A.C. 373 (H.L.), at
page 382). The true intent of a contractual term is
to be gathered by reading it in the light of all the
different parts of the document. That, it seems to
me, was the approach taken by the Supreme Court
of Canada in construing a contract in Hillis Oil
and Sales Ltd. v. Wynn's Canada, Ltd., [1986] 1
S.C.R. 57 where Le Dain J., speaking for the
Court (at page 66), said:
If it stood alone as the only termination clause in the
distributorship agreements clause 23 would have to be con
strued, I think, as permitting termination with or without cause
by either party with immediate effect. But clause 23 cannot be
regarded as standing alone; it must be construed in the light of
the agreement as a whole, and in particular in the light of the
other termination provision in clause 20. The general principle
was stated by Estey J. in Consolidated-Bathurst Export Ltd. v.
Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R.
888, at p. 901, where he said that "the normal rules of
construction lead a court to search for an interpretation which,
from the whole of the contract, would appear to promote or
advance the true intent of the parties at the time of entry into
the contract." Also particularly apposite are the words of
Dickson J. (as he then was) in McClelland and Stewart Ltd. v.
Mutual Life Assurance Co. of Canada, [1981] 2 S.C.R. 6, at p.
19, where he said:
Taken alone and read without consideration of the scheme
of the policy the kindred language of the self-destruction
clause and the Declaration undoubtedly create a formidable
argument in support of the case of the assurance company. It
is plain however these cannot be read in an isolated and
disjunctive way. The question before us is not to be deter
mined on a mechanical reading of two phrases set apart, but
rather on a reading of the policy and the Declaration in
entirety.
With this guidance in mind, I turn next to
examine the Adjudicator's approach to the con
struction of paragraph 12. As I understand it, he
saw no need to examine that paragraph in the light
of the Standard as a whole. Subparagraph 5(1)
and paragraphs 12-16, 20, 27, 28, 29, 34 and 49,
he thought, were the only ones "relevant to the
grievance" (Case Book, Vol. III, page 800). Did he
err in law in taking that approach? I would agree
that he committed no error if a reading of the
document as a whole would not have assisted him
in construing paragraph 12.
The applicant argues that the Standard was
intended to protect the health and safety of
employees only if they are called upon to work, or
come in contact, with dangerous substances "in the
context of industrial usage of these substances".
With respect, I consider that submission ill-found
ed for I can find no valid reason for so limiting its
scope. The definition of "dangerous substance" is
broadly stated. True, the record and particularly
the pamphlet (Ex. G-4) mentioned in subpara-
graph 13(1) of the Standard, contains many refer
ences to "industrial experience", "industrial use",
"industrial processes" and even to "industrial sub
stances". Besides, subparagraphs 11(1), 13(2),
16(2) and 22(2) of the Standard speak of "good
industrial safety practice". But these do not neces
sarily disclose an intention to limit the protection
to dangerous substances that are in industrial
usage by the employer. The Standard was drafted
with many groups of employees and a host of
different employer operations in mind. By para
graph 1 it applies to "all Public Service Depart
ments and Agencies" listed in Part 1 Schedule 1 of
the Public Service Staff Relations Act. There are
sixty-eight of them on that list. I have no doubt it
was intended to protect the health of employees
from industrial usage of dangerous substances if,
indeed, any such usage is present in a particular
workplace. But the protection is wider in my view.
The intention was to protect the health of
employees from the presence in the workplace of
any dangerous substances to which the Standard
otherwise applies. The real and only question is
whether the Standard regards passive cigarette
smoke as a dangerous substance.
In answering this question I look first at the
language in which paragraph 12 is cast. It requires
any dangerous substances that may be carried by
the air to "be confined as closely as is reasonably
practicable to its source" (my emphasis). The
obligation rests with the employer. What then is
its scope? Does it oblige him to confine to their
sources all dangerous substances that may be car
ried by the air into the workplace? Must he, for
example, keep from the air of the workplace dan
gerous substances produced by his neighbour? I
hardly think so. In my view, the document contem
plates that the employer will have it within his own
power and control to do whatever is expected of
him. When a dangerous substance needed in the
workplace may be carried by the air, the employer
must confine it as closely as is reasonably practi
cable to the place where it is needed or kept.
Application of the Standard to a dangerous
substance that is not needed in the workplace is
not nearly so clear cut. That is certainly so in the
case of passive cigarette smoke. Was paragraph 12
intended to cover it as well? The employer cannot
deal with it in quite the same way as he can a
substance that is his own, for the concerns of all
employees affected—smokers and non-smokers
alike—would have to be taken into account. A
number of questions suggest themselves here.
Should he, for example, prohibit smoking in the
workplace? If not, should it be permitted only in a
separate smoking area? At what times during
working hours should it be permitted there and for
what duration? Should the smoker suffer loss of
remuneration for time so lost? Then again, if the
work premises are provided with common areas for
employees (e.g. lunchrooms, washrooms etc.), are
they to be out of bounds to smokers? In the
context of collective bargaining these questions
would normally be regarded as the stuff of
negotiations. Yet, I can find not a single word said
about them in the collective agreement. Was the
omission accidental? I doubt it. The respondent
argues (and the Adjudicator agreed) that the
employer can do no less than apply to passive
cigarette smoke the rather vague language of para
graph 12 in the light of the somewhat circular
language of the "dangerous substance" definition.
I ask myself if that can safely be done without first
having regard to the wider context in which this
one of some forty-nine paragraphs appears in
order to discover, if we can, whether the parties
had passive cigarette smoke in mind. I do not think
we can do so.
It is here I think that the Adjudicator went
wrong in law for, in my view, in construing para
graph 12 he would have gained considerable assist
ance from examining other parts of the Standard
clearly and unmistakably pointing to sources of
dangerous substances in the workplace. None of
these were considered relevant by the Adjudicator.
I have in mind the sources identified in the follow
ing paragraphs:
6. A dangerous substance or radiation emitting device shall
not be used if it is reasonably practicable to use a substance or
device that is not dangerous.
7. Where it is necessary to use a dangerous substance or a
radiation emitting device and more than one kind of such
substance or device is available, to the extent that it is reason
ably practicable, the one that is least dangerous is to be used.
8. Where operations involve the use of a dangerous substance
or a radiation emitting device in any area, the use of that
substance or device and any hazard resulting from that use are
to be confined within that area, to the extent that is reasonably
practicable.
9. Where operations require the storing of dangerous sub
stances in any area, they are to be stored, to the extent that is
reasonably practicable, in a manner that will prevent the
transmission of the effect of an explosion, fire or other accident
in that area to any adjacent area.
10. A dangerous substance shall not be stored near another
substance if the potential danger of the dangerous substance is
likely to be increased thereby.
11. To the extent that is reasonably practicable, the quantity
of a dangerous substance in any area where it is being used,
processed or manufactured should not exceed
(1) the quantity that is consistent with good industrial safety
practice; or
(2) the amount required for that area for one work day,
whichever is the lesser.
21. An employee shall not use or handle, or be permitted to
use or handle, a dangerous substance or radiation emitting
device where such use or handling would expose the employee
to danger unless the employee has been instructed and trained
24. Where a dangerous substance or radiation emitting
device is handled, stored or used in any area in any manner that
is dangerous to the safety or health of an employee who might
be in that area, signs are to be posted to warn persons entering
the area of that danger.
25. Departments shall ensure that
(1) every portable container for a dangerous substance that is
used on its premises complies with a portable container
specification prescribed for that dangerous substance in the
Canadian Transport Commission Regulations for the Trans
portation of Dangerous Commodities by Rail, or with a
portable container specification recommended by Labour
Canada or Health and Welfare Canada;
(2) every stationary storage container for a dangerous sub
stance that is used on its premises complies with a stationary
storage container specification prescribed for that dangerous
substance pursuant to a law of the province or territory in
which the container is located, or with a stationary storage
container specification recommended by Labour Canada or
Health and Welfare Canada;
(3) every container for a radiation emitting device that is
used on its premises complies with a container specification
prescribed for that radiation emitting device by the Radia
tion Protection Bureau of Health and Welfare Canada.
26. Every container of a dangerous substance that is used is,
with respect to its contents, to be labelled, marked or tagged in
accordance with
(1) the Canadian Transport Commission Regulations for the
Transportation of Dangerous Commodities by Rail;
(2) the Manufacturing Chemists Association Guide to Pre
cautionary Labelling of Hazardous Chemicals;
(3) the requirements of the Hazardous Products (Hazardous
Substances) Regulations of Canada, or any other labelling
standard that identifies the dangerous substance in the con
tainer by its common name, and lists the principal danger or
dangers of that substance. [My emphasis.]
The opening words of paragraph 37 refer to all of
these various sources:
37. To the extent that is reasonably practicable, the design
and construction of every place in which a dangerous substance
is manufactured, handled, stored, processed or used, shall be
such that .... [My emphasis.]
I have concluded that paragraph 12 refers to
dangerous substances whose sources are identified
in these paragraphs and not to passive cigarette
smoke. That is to say, it requires the employer to
confine any dangerous substances that may be
carried by the air as closely as is reasonably
practicable to the places where they are being
used, stored or handled and, in appropriate cases,
to the places where they are being manufactured
or processed by him. The respondent, while argu
ing for a broader interpretation, conceded in argu
ment before us that paragraph 12 applies to an
airborne dangerous substance originating in any
such source. In the present case, danger to the
respondent's health derives not from a dangerous
substance originating in any of these sources but
rather from the personal habits of fellow
employees. That danger, as I see it, is not
addressed by the Standard and the Adjudicator
erred in law in deciding that paragraphs 12 and 15
apply.
I would allow this application, set aside the
decision of the Adjudicator dated December 20,
1985 and refer the matter back to him on the basis
that passive cigarette smoke is not a dangerous
substance to which the Standard applies.
PRATTE 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.