A-424-82
Bell Canada (Applicant)
v.
Canada Labour Relations Board and Gaétan Fro-
ment (Respondents)
Court of Appeal, Pratte, Le Dain JJ. and Lalande
D.J.—Montreal, May 30; Ottawa, June 16, 1983.
Labour relations — Refusal to work based on danger to
health or safety — Suspension — Board allowing complaint
because penalty imposed for acting in accordance with s. 82.1
of the Code — Issue being whether employee had reasonable
cause to believe condition on a given day at a given place
constituting imminent danger to health or safety.
Judicial review — Applications to review — Whether denial
of natural justice — Presiding Board member not biased —
Board right in not admitting in evidence decision of safety
officer on similar case involving respondent employee —
Board exceeded jurisdiction in making finding on danger
based on conditions at different places where work to have
been done over certain period — Application allowed —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 82.1 (as added
by S.C. 1977-78, c. 27, s. 28), 96.1, 96.3 (as added idem, s. 33),
97(1)(d) (as am. idem, s. 34) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
The respondent Bell Canada employee, assigned to install
telephone cables in a remote area, refused to work because he
felt it was dangerous to work there alone. His employer sus
pended him for insubordination after a safety officer found that
on the day in question, there was in that place no condition
which would constitute an imminent danger to his health or
safety. The Canada Labour Relations Board allowed the
employee's complaint that he had been suspended for having
exercised his right under subsection 82.1(1) of the Canada
Labour Code to refuse to work in a place he had cause to
believe was dangerous.
The only serious allegation the applicant is making against
the Board is that it gave such an unreasonable interpretation of
subsection 82.1(1) that it decided an issue other than the one
before it, thus exceeding its jurisdiction.
Held, the application should be allowed. Each case being
different, the Board was justified in not admitting in evidence a
later decision of a safety officer on a similar case involving the
respondent employee. The allegation that the presiding Board
member was biased is totally unfounded. In interpreting section
82.1 as allowing an employee to refuse to work in a place that
does not present any danger because he anticipates that he will
later be called upon to work in another place that he considers
dangerous, the Board decided a question other than the one
remitted to it, thereby exceeding its jurisdiction.
CASE JUDICIALLY CONSIDERED
APPLIED:
Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227.
COUNSEL:
Roy L. Heenan for applicant.
Louis Le Bel for respondent C.L.R.B.
Janet Cleveland for respondents Gaétan Fro-
ment and the Communications Workers of
Canada.
SOLICITORS:
Heenan, Blaikie, Jolin, Potvin, Trépanier,
Cobbett, Montreal, for applicant.
Grondin, Le Bel, Poudrier, Isabel, Morin &
Gagnon, Quebec City, for respondent
C.L.R.B.
Rivest, Castiglio, Castiglio, LeBel &
Schmidt, Montreal, for respondents Gaétan
Froment and the Communications Workers of
Canada.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant is asking that a deci
sion of the Canada Labour Relations Board
upholding a complaint that respondent Froment
had made against it under section 96.1 of the
Canada Labour Code [R.S.C. 1970, c. L-1, as
added by S.C. 1977-78, c. 27, s. 33] be set aside
under section 28 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10].
In order to understand the case it is necessary to
bear in mind at least some of the provisions of
sections 82.1, 96.1 and paragraph 97(1)(d) of the
Code. Subsection 82.1(1) gives every employee
having reasonable cause to believe that a particu
lar type of work constitutes an imminent danger to
his own safety or health the right to refuse to
do that work.' Furthermore, under paragraph
' Subsection 82.1(1) reads as follows [as added by S.C.
1977-78, c. 27, s. 28]:
82.1 (1) Where a person employed upon or in connection
with the operation of any federal work, undertaking or
business has reasonable cause to believe that
(Continued on next page)
97(1)(d), it is an offence for an employer to punish
an employee because the latter has exercised his
right under section 82.1 to refuse to perform dan
gerous work. 2 Section 96.1, finally, allows an
employee to make a complaint to the Board of an
alleged contravention of paragraph 97(1)(d) by his
employer; if the Board finds the complaint to be
justified, it may make any of the orders authorized
under section 96.3. 3
(Continued from previous page)
(a) the use or operation of a machine, device or thing
would constitute an imminent danger to the safety or
health of himself or another employee, or
(b) a condition exists in any place that would constitute an
imminent danger to his own safety or health,
that person may refuse to use or operate the machine, device
or thing or to work in the place.
The rest of section 82.1 may be summarized as follows: an
employee who exercises his right under subsection 82.1(1) and
refuses to work must forthwith report the circumstances of the
matter to his employer, who must investigate immediately; if,
following such investigation, the employee is not satisfied with
the steps taken by the employer, he has the right to continue to
refuse to work; the matter is then referred to a safety officer,
who must decide whether there is an imminent danger to the
health or safety of the employee, and if he decides that there is,
he must give such directions as he considers appropriate to
eliminate the danger; if the safety officer decides that there is
no imminent danger to the employee, the latter must return to
work, and if he decides that there is an imminent danger, the
employee may refuse to work until such time as the employer
has eliminated the danger; in all cases, however, the safety
officer's decision may be referred to the Canada Labour Rela
tions Board, which has jurisdiction to determine in the last
resort whether there is an imminent danger to the worker and,
if so, to give the employer the appropriate directions to elimi
nate the danger. It should be added, finally, that subsection
82.1(12) states that a particular condition or circumstance in a
place where an employee is working does not constitute an
imminent danger to the health or safety of that employee
within the meaning of section 82.1 if the employee would
normally in that particular occupation or in the course of his
employment work in a place in that condition or circumstance.
2 This provision reads as follows [as am. by S.C. 1977-78, c.
27, s. 34]:
97. (1) An employer or any person in charge of the
operation of any federal work, undertaking or business is
guilty of an offence who
(d) because a person employed by him has acted in
accordance with section 82.1, suspends, discharges or
imposes any financial or other penalty on that person,
including the refusal to pay him remuneration in respect of
any period of time that he would, if he were not acting in
accordance with section 82.1, have been working, or takes
Respondent Froment has been in applicant's
employ since 1976. His work consists in splicing
telephone cables, both underground and aerial
cables. On November 24, 1980 he was assigned to
work in the St -Côme area, about fifteen kilometres
from the City of Joliette, where an aerial tele
phone line was to be installed along a route from a
point designated by the letters D.M.S. 4 to a cross
roads and from there to a ski hill located about
five miles further on. This work was to have been
terminated on December 15. On November 24
Froment went to the site to prepare his work by
placing the telephone cables in the poles located
between point D.M.S. and the crossroads. On the
morning of November 27 everything was ready
and the respondent was in a position to begin
splicing the telephone cables when he asked to see
his foreman. The latter went to the site. After
setting out several other grievances, the respondent
told him that he felt it was dangerous to work
alone in such an isolated place and asked to be
given a work companion. The foreman refused and
told the respondent that he was free to go home if
he was not satisfied. The respondent demanded the
right to get in touch with a representative of his
union. When this in turn was refused the respond-
any other disciplinary action against such person, or
threatens to take any action mentioned in this paragraph
against such person ....
3 This section reads as follows [as added by S.C. 1977-78, c.
27, s. 33]:
96.3 Where, under section 96.2, the Board determines that
an employee or a person acting on behalf of an employer has
contravened paragraph 97(1)(d), the Board may, by order,
require the employer or the person acting on behalf of an
employer to comply with that paragraph and may, where
applicable, by order, require the employer to
(a) permit to return to the duties of his employment any
person employed by the employer who has been affected
by that contravention;
(b) reinstate any former employee affected by that contra
vention as an employee of the employer;
(c) pay to any employee or former employee affected by
that contravention compensation not exceeding such sum
as, in the opinion of the Board, is equivalent to the
remuneration that would, but for that contravention, have
been paid by the employer to that employee or former
employee; and
(d) rescind any disciplinary action taken in respect of and
pay compensation to any employee affected by that contra
vention, not exceeding such sum as, in the opinion of the
Board, is equivalent to any financial or other penalty
imposed on the employee by the employer.
4 Digital Multiple System.
ent wrote the following note, which he gave to the
foreman before leaving his work:
[TRANSLATION] I hereby give you notice that I consider it
unsafe to work here in St -Côme (Chemin Versaille (Lac Clair)
Chemin de la Ferme) alone and that there should be at least
two of us.
Mr. Mantha you are suspending me even after I asked you to
meet my union steward.
You answered by telling me to go meet him.
Gaétan Froment.
The following day, November 28, the foreman got
in touch with the respondent and asked him to
return to work, to no avail. The matter was then
referred to a safety officer pursuant to section 82.1
of the Code. The latter came to the conclusion, on
December 2, 1980, that no condition existed in the
place in which the respondent was to have worked
on November 27, 1980 that would constitute an
imminent danger to his health or safety. On
December 4, 1980 the applicant notified the
respondent that he had been suspended for
insubordination from November 27 to December
3, 1980. It is this suspension that was the basis for
the complaint which the Board allowed. In this
complaint respondent Froment alleged that the
applicant had suspended him because on Novem-
ber 27, 1980 he had exercised his right under
subsection 82.1(1) to refuse to work in a place he
had cause to believe was dangerous.
The applicant maintained that in rendering the
decision a quo the Board failed to observe the
principles of natural justice and exceeded its
jurisdiction. 5
I. The principles of natural justice.
Counsel for the applicant first maintained that
the Board had violated the audi alteram partem
rule. He also argued that the Board member who
presided over the hearing had by his conduct
shown that he was biased in favour of respondent
Froment, but this allegation seems entirely
unfounded to me and I do not intend to say
anything further about it.
According to counsel for the applicant, the
Board violated the audi alteram partem rule in
refusing to admit in evidence a decision that a
5 These are the two cases where section 122 of the Code
allows the Court to review the Board's decisions.
safety officer had made under section 82.1 of the
Code. In that decision, rendered on January 14,
1981 following another refusal by respondent Fro-
ment to work in an isolated place, the safety
officer apparently found that this refusal to work
was not justified under subsection 82.1(12)
because it was normal for a Bell Canada employee
responsible for splicing telephone cables to have to
work in isolated places. Counsel for the applicant
maintained that in refusing to admit this decision
in evidence the Board deprived his client of the
right to present a peremptory defence.
Even if I assume that the rejection of evidence
found to be inadmissible can constitute a violation
of the audi alteram partem rule, this is not the
case here. In order to realize this, it is necessary to
understand that the issue before the Board was not
whether the place where Mr. Froment was to have
worked on November 27, 1980 in fact constituted
a danger to his health or safety. That issue had
already been decided by the safety officer on
December 2, 1980. The Board had to decide
whether the applicant had suspended respondent
because he had exercised his right under subsec
tion 82.1(1). More precisely, since it was common
ground that applicant had suspended the respond
ent because the latter had refused to work on
November 27, 1980, maintaining that his safety
was in danger, the Board had to decide whether on
November 27 the respondent had reasonable cause
to believe that a condition existed in the place
where he was to have worked that would constitute
an imminent danger to his safety or health. I do
not see how a decision that was not rendered until
January 1981, following a refusal to work in
another place, could have helped the Board answer
this question. I am therefore of the view that the
Board was justified in finding that the decision
which the applicant wished to adduce in evidence
was not relevant to the problem the Board had to
resolve. Moreover, even if that decision could have
been considered relevant, it seems certain to me
that it would not have provided an answer to the
question before the Board and that in refusing to
admit it in evidence, the latter did not, in my view,
violate the audi alteram partem rule. Despite this
refusal it was still open to the applicant to prove,
as it tried to do, that respondent Froment had no
reasonable cause to believe that a condition existed
at the place where he was to have worked that
would constitute an imminent danger within the
meaning of section 82.1.
2. Jurisdiction.
It is clear that under section 96.1, the Board had
jurisdiction to hear and determine the respondent's
complaint. Moreover, the applicant does not dis
pute this. What it is alleging or, more precisely,
the only serious allegation it is making against the
Board in this regard is that the latter gave subsec
tion 82.1(1) such an unreasonable interpretation
that it was led to decide an issue other than the
one before it (Canadian Union of Public
Employees Local 963 v. New Brusnwick Liquor
Corporation, [1979] 2 S.C.R. 227, at page 237).
The only issue that was really before the Board
was whether when respondent Froment refused to
work in a place he felt was too isolated on Novem-
ber 27, 1980 he had reasonable cause to believe
that a condition existed at that place that would
constitute an imminent danger to his safety or
health. The Board answered this question in the
affirmative. It did so, however, not, as might have
been expected, because it was of the view that the
place where the respondent was to have worked on
November 27, 1980 (situated between point
D.M.S. and the crossroads) presented a danger.
The Board stated in effect that it was common
ground that this place did not present any danger;
and it seems clear, although the Board did not say
anything on this point, that it was also of the view
that respondent Froment did not have reasonable
cause to believe that this place was dangerous. It is
clear from the decision a quo that the Board was
of the view that on November 27, 1980 the
respondent not only refused to work where he was
to have worked that day (that is, between point
D.M.S. and the crossroads) but also refused to do
any of the work to which he had been assigned a
few days earlier, work which was to have con
tinued until December 15, 1980 and have been
performed not only between point D.M.S. and the
crossroads but also over the distance of close to
five miles separating the crossroads from the ski
hill. The Board therefore asked itself whether the
respondent could reasonably have believed that the
places where all this work was to have been per
formed constituted a danger to his safety. It is
because the Board answered the question thus
posed in the affirmative that it decided as it did. In
so doing the Board, in my view, so misinterpreted
paragraph 82.1(1)(b) that it decided a question
other than the one remitted to it. This paragraph
does not allow an employee to refuse to be
assigned to work only part of which is to be
performed in a dangerous place; it only allows an
employee to refuse to work in a place that he has
reasonable cause to believe is dangerous. Conse
quently, if the work to which an employee is
assigned is to be performed in different places,
section 82.1 does not allow him to refuse to work
in a place that does not present any danger
because he anticipates that he will later be called
upon to work in another place that he considers
dangerous.
For these reasons I am therefore of the view that
the Board exceeded its jurisdiction in rendering the
decision a quo. I would therefore allow the
application, set aside that decision and refer the
matter back to the Board to be decided by it on the
assumption that the question it must answer is
whether respondent Froment had reasonable cause
to believe that a condition existed in the place
where he was to have worked on November 27,
1980 that would constitute an imminent danger to
his safety or health.
LE DAIN J.: I concur.
LALANDE D.J.: I concur in these reasons and in
the order.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.