CUPE v. Air Canada

CUPE v. Air Canada

On notification under s.128(13) an HSO does not have jurisdiction to make a preliminary inquiry or to determine that the alleged danger is a "normal condition of employment" under s.128(2); section 129 mandates that the HSO must, without delay, investigate and decide whether a danger exists; therefore the HSO's decision made without a s.129 investigation was ultra vires and must be quashed; standard of review applied: correctness for jurisdiction and procedural fairness, reasonableness for factual findings.

Citation
2010 FC 245
Parties
Applicant: CUPE, AIR CANADA COMPONENT; Respondent: AIR CANADA
Court
Federal Court
Jurisdiction
Canada
Judgment Date
3 March 2010
Procedural Posture
Judicial Review of Administrative Decision / Final Judgment
Outcome
Application allowed; Health and Safety Officer decision quashed and set aside; costs awarded to applicant.
Legal Topics
Work Refusal, Normal Condition of Employment, Jurisdiction of Health and Safety Officer, Standard of Review, Procedural Fairness, Canada Labour Code Interpretation
Source Language
English
Labour Law Administrative Law Occupational Health and Safety Work Refusal Normal Condition of Employment Jurisdiction of Health and Safety Officer Standard of Review Procedural Fairness +1 more

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Parties

CUPE, AIR CANADA COMPONENT

Applicant

AIR CANADA

Respondent

Procedural Posture

Judicial Review of Administrative Decision / Final Judgment

Legal Issues

  1. 1 What is the appropriate standard of review?
  2. 2 Can a Health and Safety Officer find that the circumstances of a work refusal constitute a "normal condition of employment" without conducting a section 129 investigation?
  3. 3 Did the HSO commit a reviewable error in finding that the circumstances constituted a "normal condition of employment"?

Ratio Decidendi

On notification under s.128(13) an HSO does not have jurisdiction to make a preliminary inquiry or to determine that the alleged danger is a "normal condition of employment" under s.128(2); section 129 mandates that the HSO must, without delay, investigate and decide whether a danger exists; therefore the HSO's decision made without a s.129 investigation was ultra vires and must be quashed; standard of review applied: correctness for jurisdiction and procedural fairness, reasonableness for factual findings.

Court Disposition

Application allowed; Health and Safety Officer decision quashed and set aside; costs awarded to applicant.

Orders

  • The application for judicial review is allowed and the decision of the Health and Safety Officer is quashed and set aside.
  • The applicant shall have its costs of the application.