A recent decision from the Supreme Court of Canada has found that an employer’s inspection obligations under the Canada Labour Code (the “Code”) only extend to those workplaces under its physical control.
In Canada Post v. Canadian Union of Postal Workers, the Canadian Union of Postal Workers (“CUPW”) complained that Canada Post had failed to inspect every part of a work place at least once a year in accordance with the mandatory inspection obligations under section 125(1) (z.12) of the Code. CUPW argued that, with respect to mail carriers, the inspection obligations extended beyond the mail depot to the carrier routes and locations where mail is delivered (“points of call”) – an ambitious undertaking as Canada Post estimated that letter carriers travel 72 million linear kilometers delivering mail to 8.7 million points of call.
Following the complaint, a Health and Safety Officer found that Canada Post failed to comply with its mandatory inspection obligations, among other issues. On appeal to the Occupational Health and Safety Tribunal Canada, the contravention relating to mandatory inspections was rescinded. The Appeal Officer noted that Canada Post had policies and other tools in place to ensure the health and safety of its employees when on carrier routes, which included protocols for identifying hazards at points of call, and found that “it would be impractical for an employer to perform [the work place inspection] obligation in respect of structures it neither owns nor has a right to alter.” Therefore, the Appeals Officer concluded that section 125(1) (z.12) of the Code only applied to those parts of the workplace over which an employer has control.
CUPW’s application for judicial review was dismissed by the Federal Court, but ultimately allowed by the Federal Court of Appeal.
By majority, the Supreme Court of Canada restored the Appeals Officer’s decision and held that “an interpretation which imposed on the employer a duty it could not fulfil would do nothing to further the aim of preventing accidents and injury.” The Court noted that the purpose of the mandatory workplace inspections is to allow an employer to identify and address hazards in the workplace which logically requires physical control over that workplace.
This decision provides federally regulated employers with welcome clarity with respect to the scope of their workplace inspection accommodations in circumstances where employees are working outside of an employer’s physical workplace.
Every workplace, whether federally or provincially regulated, needs a strong health and safety program – which for some employers may include procedures for employees working off site. Click here for a list of CCP team members who can assist with your health and safety issues.
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