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Case Comment: Sacks v. Air Canada
Published in the February 2008 issue of Transportation Notes - View Article
The Supreme Court recently dismissed a leave to appeal application brought by the union representing Air Canada employees, thereby ending a long-standing complaint that originated in the 2000 merger of Canadian Airlines and Air Canada.
As part of the merger, Air Canada was required to prepare a single Manual to be used by flight crews dealing with matters including health and safety issues. Cabin personnel were also to be trained in the procedures set out in that Manual.
The union expressed a number of concerns relating to the health and safety aspects of the new Manual and whether sufficient personnel could be adequately trained by its effective date. The union filed a complaint under the internal complaint resolution process mandated by the Canada Labour Code (“the Code”). When the complaints were not resolved to the union’s satisfaction, the complaints were referred to a health and safety officer pursuant to the Code. The Officer concluded that there were no health and safety contraventions and in the two instances raised where concerns may exist, the Officer accepted an assurance of voluntary compliance from Air Canada.
The union believed that the investigation and decision were biased and flawed. It filed an appeal pursuant to the Code. The Appeals Officer held that he did not have the statutory authority to hear an appeal of the Health and Safety Officer’s decision to not issue a direction, regardless of whether the investigation was biased or flawed.
The union sought judicial review of the Appeal Officer’s decision on the basis that he erred in finding that he did not have jurisdiction to hear the appeal and in the alternative, that s. 146(1) of the Code was unconstitutional.
At issue was the interpretation of s. 146(1) of the Code which provides that an employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer may appeal the direction to an appeals officer.
The union argued that it would be a violation of the “principles of natural justice” to interpret the appeal provision other than providing equal access to all parties potentially affected. Alternatively, the union argued that the section should be read in the light of s. 7 of the Charter, and as the Manual dealt with health and safety issues, the “security of the person” Charter right was affected. Both arguments were rejected by the Federal Court. It held that the disputed section provided an avenue of appeal where the employer has been directed to do something and where no direction has been made, then the employee may, under the Code, in certain conditions, refuse to work or seek judicial review. It also held that Charter principles are only to be prevalent in interpreting a statute where the statute provides for more than one interpretation and the Court cannot rewrite a statute where no reasonable ambiguity exists. There was no violation of s. 7 as there is no constitutional right to appeal. In any case, Parliament did grant a right of appeal for directions issued, and there were other forms of redress for refusal to give directions, such as refusal to work and judicial review.
The Federal Court’s decision held that the Code contains carefully constructed avenues of appeal and that no implicit right to appeal can be read in. It also found no Charter violation. In all of this, it was upheld by the Federal Court of Appeal and the Supreme Court.
Sachs v. Air Canada
[2007] S.C.C. No. 547