'Workplace' Under Part II Of The Canada Labour Code Includes Work Activities Performed In Workplaces Not Controlled By The Employer

In our bulletin of March 31, 2016, we discussed a Federal Court judgment issued in February 2016, in which the Court endorsed an Appeals Officer's decision who limited the definition of "workplace" for the purposes of inspection under Part II of the Canada Labour Code (the "Code") to workplaces where the employer exercises control: Canadian Union of Postal Workers v. Canada Post Corporation, 2016 FC 252.

In a judgment issued on July 13, 2017, the Federal Court of Appeal reversed the Appeals Officer's decision: Canadian Union of Postal Workers v. Canada Post Corporation, 2017 FCA 153.

The facts are as follows. A complaint was filed by an employee member of a local joint health and safety committee, represented by the Canadian Union of Postal Workers, alleging that Canada Post should not only be inspecting its physical building in Burlington, Ontario, but also the letter carrier routes.

In 2012, the Health and Safety Officer issued a direction, finding that Canada Post had failed to ensure that the entirety of the workplace was inspected annually in contravention of paragraph 125(1)(z.12) of the Code. Canada Post appealed the direction and the Appeals Officer rescinded the contravention of paragraph 125(1)(z.12) of the Code. The Appeals Officer concluded that the inspection obligation did not apply to any place where a letter carrier is engaged in work outside of Canada Post's physical building in Burlington, given that the employer does not exercise control over these workplaces. In the Appeals Officer's view, the inspection obligation only arises where the employer controls the workplace as the purpose of the inspection is the identification and opportunity to fix hazards. The Appeals Officer concluded that Canada Post has no physical control over the points of call and lines of route and, therefore, cannot fix hazards.

In its judgment issued last year, the Federal Court determined that the Appeals Officer's interpretation, which draws a distinction between control over the "workplace" and control over the "work activity", was reasonable. The Federal Court found that it was not unreasonable for the Appeals Officer to conclude that Canada Post could not fulfill the purpose of the inspection obligation without control over the workplace.

Last July, the Federal Court of Appeal allowed the appeal in a divided judgment. Both Nadon J.A. and Rennie J.A. concurred on the result, but based on different reasoning. Justice Near, who wrote dissent...