The Court dismissed the application of judicial review of an employee of the Canada Border Services Agency (the “CBSA”), of a decision of an appeals officer of the occupational Health and Safety Tribunal Canada (the “Tribunal”), who concluded that there was no “danger” within the meaning of the Canada Labour Code, RSC 1985, c.L-2 (the “Code”) justifying the employee’s refusal to work. This was the second application for judicial review resulting from the refusal to work, with the first application being allowed, with the matter referred back to the appeals officer to “complete her analysis in accordance with the reasons of the judgment”. The Court found no breach of procedural fairness in the appeals officer declining the request to hold a hearing following the first judgment of the Court and before making her second decision. The Court also found the decision reasonable, finding that the appeals officer’s decision fell within the range of acceptable and rational solutions. The decision had the qualities of reasonableness, in that the decision-making process was justifiable, transparent and intelligible.

Administrative law – Decisions of administrative tribunals – Occupational Health and Safety Tribunal – Labour law – Working conditions – Judicial review – Appeals – Failure to provide reasons – Procedural requirements and fairness

Laroche v. Canada (Attorney General), [2013] F.C.J. No. 859, 2013 FC 797, Federal Court , July 18, 2013, Roy J.

This was an application for judicial review by an employee of Canada Border Services Agency. The applicant was asked to participate in a search to be conducted by the Service de Police de la Ville de Montreal and refused after being informed he could not carry his “defensive tools” (a truncheon, handcuffs, pepper spray and a fire arm). He then filed a refusal to work, relying on Section 128 of the Canada Labour Code, RSC 1985, c. L-2 (the Code), on the basis that he had reasonable cause to believe that a condition exists in the workplace that constituted a danger to the employee. If there is a danger within the meaning of the Code, then the refusal is justified. Both the health and safety officer and the appeals officer concluded there was no danger within the meaning of the Code. The applicant applied for judicial review which was allowed with the Court ordering that the entire matter be “referred back to the appeals officer so that she [could] complete her analysis in accordance with the reasons of the judgment”. The same appeals officer resumed her analysis without convening a hearing or receiving additional submissions. The appeals officer issued a second decision, improving her analysis, but not changing her conclusion that there had been no danger within the meaning of the Code. The applicant applied a second time for judicial review.

The application was dismissed. There was no breach of procedural fairness by the appeals officer in declining the applicant’s request to hold a hearing following the judgment on the first judicial review. This was not a redetermination. Rather, the Court had ordered that a party of the analysis be completed. What remained to be considered was the dynamic nature of searches in order to determine whether there is danger within the meaning of the Code and how this danger can be minimalized so that there is no reasonable possibility that it would occur. It was a question of the appeals officer finishing what she had started on the basis of the existing file. As well, the applicant had raised the procedural fairness argument too late, rather than at the earliest opportunity as required by case law. As well, the decision of the appeals officer was reasonable. Occupational health and safety is within the expertise of the appeals officer and the concept of “danger” under the Code is one that the appeals officer deals with on a daily basis. She is entitled to considerable deference. Ultimately, the applicant wanted to carry his “defensive tools” during the search because of his subjective fear of a potential danger. The appeals officer’s decision that the danger was only a mere possibility rather than a reasonable possibility fell within the range of acceptable and rational solutions. They had the quality of reasonableness, in that the decision making process was justifiable, transparent and intelligible. Consequently, the application for judicial review must be dismissed.

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