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Labour (Fed) - Canada Labour Code. Duiker v. Canada (Attorney General)
In Duiker v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, this from a Federal Court JR dismissal issued, this from "a decision of the Regional Director of the Labour Program of Employment and Social Development Canada (ESDC)", here regarding "a work refusal pursuant to section 128 [SS: 'Refusal to Work if Danger'] of the Canada Labour Code" at a maximum-security prison:
Here the court considers 'bad faith' as used in CLC s.129(1)(c) ['Head’s investigation']:[3] On February 10, 2022, the correctional officers in Unit F were informed that their unit would be transitioning from a "“modified”" inmate movement routine to a "“normal”" routine. This prompted the appellants and other correctional officers to refuse work claiming that a lack of access to firearms to respond to inmate violence created a danger, and that the available alternative non-lethal weaponry was inadequate. On March 3, 2022, after a recommendation by an ESDC investigator, the Regional Director decided not to investigate the work refusal on the basis that it had been made "“in bad faith”" pursuant to paragraph 129(1)(c) of the Canada Labour Code. The employees were no longer entitled to refuse work.
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[6] The appellants submit that the Decision is unreasonable because the finding of "“bad faith”" turned on a conclusion that they did not seek to resolve the issue collaboratively, which they say is unfounded. They point to meetings on February 8 and 9, 2022 with the employer, to discuss the withdrawal of C8 Carbines from the inmate living units. In our view, these limited collaborative attempts over a brief period did not render unreasonable the Regional Director’s conclusion that the Internal Complaint Resolution Process to work in a collaborative manner had been "“bypassed”."
[7] The appellants also submit, and we agree, that employees are not required to initiate a complaint under section 127.1 of the Canada Labour Code (the Internal Complaint Resolution Process) before refusing work. Nonetheless, and whether or not such a complaint had in fact been initiated, the Regional Director was entitled to consider a failure to meaningfully pursue an internal collaborative process in reaching a conclusion of bad faith. The Regional Director’s conclusion was further supported with the observations that the C8 Carbines’ withdrawal was noted as an interim measure and that other options would be examined. Also, as noted in the Decision, the work refusal came shortly after the decision to withdraw the C8 Carbines, and it came on the heels of a second work refusal.
[8] It was not unreasonable for the Regional Director to conclude that these facts supported a failure to pursue a collaborative resolution and a finding of "“bad faith”", consistent with the ESDC Occupational Health and Safety Interpretations, Policies and Guidelines (Complaint is Trivial, Frivolous, Vexatious, or Made in Bad Faith – 905-1-IPG-083) and the law. As the Federal Court observed, a work refusal is not limitless. It is a "“back up mechanism”", to be exercised in emergency situations, when the main elements of an internal review process have not been effective: Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 at para. 140.
[9] The appellants also submit that the Decision is unreasonable because the conclusion on no imminent threat of serious harm rested on the premise of a modified inmate movement routine at the time of the work refusal, and that was about to change. Accepting the appellants’ distinction that Unit F was returning to a normal routine, this does not render the Decision unreasonable. The work refusal was initiated in other living units and the statement in the Decision holds true concerning those.
[10] We accept the appellants’ concern that the Federal Court provided supplementary reasons for the Decision when it identified contradictory positions taken by correctional officer Cotton on the danger associated with C8 Carbines. While this information was before the Regional Director, it is not obviously part of the Decision, and it was not for the Federal Court to add further justification for the Decision: Vavilov at para. 96.
[11] In the circumstances, it was not unreasonable for the Regional Director to conclude that the work refusal was made in bad faith and, thus, an investigation was not required. . Canadian Pacific Railway Company v. Canada (Attorney General)
In Canadian Pacific Railway Company v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal comments on the role of the Canada Labour Code:[1] The Canadian Pacific Railway Company is a federally regulated employer. As such, it is required to comply with the provisions of the Canada Labour Code, R.S.C. 1985, c. L-2, including the provisions of Part II of the Code that govern occupational health and safety in federally regulated workplaces. Of particular relevance to this application is subsection 134.1(1) of the Code, found in Part II, that requires CP to establish a Policy Health and Safety Committee (Committee) "“[f]or the purposes of addressing health and safety matters that apply to [CP’s] work, undertaking or business”". . Canada (Attorney General) v. Monette
In Canada (Attorney General) v. Monette (Fed CA, 2024) the Federal Court of Appeal allowed a Crown JR, here from a CIRB decision involving the unpaid wage provisions of the Canada Labour Code which the court found 'unreasonableness' for it's lack of thoroughness:[17] Section 251.18 of the Code reads as follows:251.18 Directors of a corporation are jointly and severally liable for wages and other amounts to which an employee is entitled under this Part, to a maximum amount equivalent to six months’ wages, to the extent that
(a) the entitlement arose during the particular director’s incumbency; and
(b) recovery of the amount from the corporation is impossible or unlikely." "
251.18 Les administrateurs d’une personne morale sont, jusqu’à concurrence d’une somme équivalant à six mois de salaire, solidairement responsables du salaire et des autres indemnités auxquels l’employé a droit sous le régime de la présente partie, dans la mesure où la créance de l’employé a pris naissance au cours de leur mandat et à la condition que le recouvrement de la créance auprès de la personne morale soit impossible ou peu probable. [18] Section 154 of the BCA provides as follows:154. Directors of a corporation are solidarily liable to the employees of a corporation for all debts not exceeding six months’ wages payable to each such employee for services performed for the corporation while they are directors of the corporation respectively.
154. Les administrateurs de la société sont solidairement responsables envers ses employés, jusqu’à concurrence de six mois de salaire, pour les services rendus à la société pendant leur administration respective.
However, a director is not liable unless the corporation is sued for the debt within one year after it becomes due and the notice of execution is returned unsatisfied in whole or in part or unless, during that period, a liquidation order is made against the corporation or it becomes bankrupt within the meaning of that expression in the Bankruptcy and Insolvency Act (R.S.C. 1985, c. B-3) and a claim for the debt is filed with the liquidator or the syndic.
Toutefois, leur responsabilité n’est engagée que si la société est poursuivie dans l’année du jour où la dette est devenue exigible et que l’avis d’exécution du jugement obtenu contre elle est rapporté insatisfait en totalité ou en partie ou si la société, pendant cette période, fait l’objet d’une ordonnance de mise en liquidation ou devient faillie au sens de la Loi sur la faillite et l’insolvabilité (L.R.C. 1985, c. B-3) et qu’une réclamation de cette dette est déposée auprès du liquidateur ou du syndic. ....
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