Westcoast Energy Inc. v. Cadieux
T-1607-93
Cullen J.
27/11/95
13 pp.
Judicial review of regional safety officer's decision-Employee of Westcoast Energy seriously injured while conducting "pigging operation" (cleaning internal surface of pipeline)-Workers' failure to open rear blowdown valve cause of accident-Pursuant to Canada Labour Code, s. 145, safety officer investigating breaches of Code following accident and giving Westcoast six directions to remedy behaviour-Aggrieved employer seeking review of safety officer's decision by regional safety officer pursuant to s. 146-Regional safety officer rescinding three directions, varying three-Direction #1 concerning use of respiratory devices-Employees provided with breathing apparatus, equipment with them at time of accident, and employees trained in use thereof-Training procedures specifying use mandatory-Regional safety officer agreeing with safety officer that Westcoast failed to ensure employees used respiratory protective equipment as prescribed-Finding contravention of Canada Labour Code, s. 125(v), Canada Occupational Safety and Health Regulations, s. 12.1-Directions #5, #6 concerning bleeder valves, safety device on pipeline-Bleeder valves easily plugged from exposure to wet sour gas-Westcoast purposely disconnecting bleeder valves because gave employees false sense of security-Regional safety officer concluding contravention of Code, s. 125.1(a) and Regulations, s. 10.16(b)-(1) Safety officer and regional safety officers decision-makers whose decisions challenged by applicant, but not adverse in interest to applicant-May be added as intervenors-Proper respondent Attorney General for Canada-(2) Regional safety officer required to interpret provisions of Canada Labour Code and Regulations-Issues before regional safety officer characterized as mixed fact and law-Standard of review applicable to questions of law herein between standards of reasonableness and correctness-(3) Regional safety officer's decision respecting use of respiratory equipment finding of fact and should not be disturbed-Finding that, as result of workers' non-use of respiratory equipment, Westcoast in contravention of Code, Regulations question of law-Evidence not supporting finding Westcoast knew, or common knowledge, employees not using prescribed respiratory equipment-Employer had no knowledge employees contravened policy on respiratory equipment and no opportunity to respond to such allegations-Code, s. 125(v) and Regulations, s. 12.1 should not be interpreted as imposing legal obligations on employer for actions of employees who admit own irresponsibility, particularly when no evidence employer encouraged or otherwise condoned disregard of safety policy-In so doing, regional safety officer erred in law-(4) No alternative safety device to bleeder valves-Regional safety officer erred in law concerning bleeder valves-Wrong to interpret Code and Regulations as prescribing use of unsafe, unreliable safety device, or mandating deployment of safety device which does not actually exist-Application allowed-Federal Court Rules, C.R.C., c. 663 R. 1602(3) (as enacted by SOR/92-43, s. 19)-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 125(v) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 4), 125.1(a) (as enacted by R.S.C., 1985 (3rd Supp.), c. 24, s. 4), 145 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 4), 146 (as am. idem)-Canada Occupational Safety and Health Regulations, SOR/86-304, ss. 10.16(b), 12.1.