Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2009 FCA 356

• Judge: Blais, C.J., Noël and Layden-Stevenson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 03, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FCA 356;(2009), 399 N.R. 3 (FCA)

CUPE, Air Can. Component v. Air Can. (2009), 399 N.R. 3 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. DE.034

CUPE, Air Canada Component (appellant) v. Air Canada (respondent)

(A-46-09; 2009 FCA 356)

Indexed As: Canadian Union of Public Employees, Air Canada Component v. Air Canada

Federal Court of Appeal

Blais, C.J., Noël and Layden-Stevenson, JJ.A.

December 3, 2009.

Summary:

The Air Canada Component of the Canadian Union of Public Employees (CUPE) challenged a decision by Transport Canada refusing to commence a workplace safety investigation under Part II of the Canada Labour Code until the completion of the internal complaint resolution process contemplated by s. 127.1.

The Federal Court, in a decision reported at 340 F.T.R. 20, dismissed the application. The court held that for a complaint of this sort which did not involve a situation of ongoing danger or an investigation under s. 141, the internal complaint resolution process had to be exhausted before recourse to a Health and Safety Officer was available under s. 127.1(8) of the Code. CUPE appealed.

The Federal Court of Appeal dismissed the appeal.

Labour Law - Topic 8051

Industrial relations - Employee rights - Refusal to do dangerous work - [See Trade Regulation - Topic 7923 ].

Trade Regulation - Topic 7922.1

Industrial safety - Enforcement - Power of safety officer - [See Trade Regulation - Topic 7923 ].

Trade Regulation - Topic 7923

Industrial safety - Enforcement - Investigations - An Air Canada flight attendant refused to work on an aircraft because of an inoperable cabin communication system - The flight attendant alleged that the circumstances created a dangerous work environment justifying a refusal to work under s. 128(1) of the Labour Code - The aircraft was grounded and another aircraft was substituted - The flight attendant complained to the Air Canada Health and Safety Committee about how the situation had been handled - Nearly one month later, the employee co-chair on the Committee (on the flight attendant's behalf) registered a complaint with Transport Canada and requested the involvement of a Health and Safety Officer (HSO) - Relying on ss. 128(10) and 128(13) of the Code, the complaint stated that the work refusal procedures were not followed - Transport Canada declined to intervene on the basis that it lacked jurisdiction - Barnes, J., reviewed Transport Canada's determination that it lacked jurisdiction to appoint an HSO "to investigate a complaint prior to completion of the Internal Complaint Resolution Process as stated in section 127.1 of the [Code] Part II" on a standard of review of correctness - The Federal Court of Appeal held that Barnes, J., correctly found that: the grounding of the aircraft satisfied the employer's obligation under s. 128(8) of the Code to take immediate action to protect the employee; the complaint therefore was grounded in s. 127.1 rather than s. 128 of the Code; s. 127.1 stipulated that alleged contraventions of the Code must be submitted to the internal complaint resolution process before other recourse was sought and its language was mandatory; the intent of s. 127.1 was to allow the parties to pursue a mutually agreeable solution before seeking outside involvement and to provide the HSO with the benefit of a written investigation report or, in the case of disagreement, two reports; s. 145 of the Code was a remedial provision which was engaged only when an HSO was carrying out an investigation authorized by some other provision of the Code; where an employee initiated a complaint under s. 127.1 of the Code, it was necessary to exhaust the internal complaint resolution process before the employee, or the union on the employee's behalf, could request an investigation by an HSO; Transport Canada's decision not to get involved was legally correct - Further, the union's argument that Transport Canada ought to have exercised discretion to consider the appointment of an HSO because the internal complaint resolution process was frustrated was not supported by the record.

Trade Regulation - Topic 7924

Industrial safety - Enforcement - Jurisdiction - [See Trade Regulation - Topic 7923 ].

Counsel:

James L. Robbins and Cavaluzzo Hayes Shilton, for the appellant;

Fred W. Headon, for the respondent.

Solicitors of Record:

McIntyre & Cornish LLP, Toronto, Ontario, for the appellant;

Air Canada, Labour & Employment Law, Dorval, Quebec, for the respondent.

This appeal was heard at Toronto, Ontario, by Blais, C.J., Noël and Layden-Stevenson, JJ.A., of the Federal Court of Appeal, on December 3, 2009. Layden-Stevenson, J.A., delivered the following reasons for judgment from the bench, for the court, on the same date.