Canada: Provincial Health And Safety Legislation Is Inapplicable To Federal Undertakings

In Commission des normes, de l'équité, de la santé et de la sécurité du travail c Commission des lésions professionnelles, 2016 QCCS 2424, the Quebec Superior Court held that provincial occupational health and safety legislation does not apply to general contractors working on federal undertakings.

Federal Undertakings

The Constitution Act, 1867 grants the federal government exclusive power to regulate on projects and infrastructure that connect one or more provinces with each other or a foreign country, or are built for the general advantage of Canada as a whole. Railways, highways, waterways, and shipping lanes tend to be federal undertakings. In this case, the St. Lawrence Seaway was the federal undertaking at issue.

Background

The case resulted from thirteen remedial orders under the provincial Occupational Health and Safety Act (the "Act"), issued by the Commission de la santé et du travail (now the Commission des normes, de l'équité, de la santé et de la sécurité du travail, "CNESST") against the St. Lawrence Seaway Management Corporation (the "Corporation"). The Corporation acted as general contractor on construction projects at the St. Lawrence Seaway. The Corporation challenged the orders to the Commission des lesions professionelles ("CLP", now the Tribunal administratif du travail), which revoked the orders, finding that the Act was constitutionally inapplicable to federal undertakings due to the doctrine of interjurisdictional immunity.

CNESST applied for judicial review of the CLP's decision, which was heard and dismissed by Justice Claudine Roy of the Superior Court of Quebec in March 2016.

Superior Court's Decision

Justice Roy noted that neither the constitutionality of the Act nor its inapplicability to the federal undertaking as an employer were in dispute. The only issue was whether the Corporation, when acting as a general contractor, becomes subject to the Act.

Justice Roy reviewed the Supreme Court of Canada decision in Commission du Salaire Minimum v Bell Telephone Company of Canada, [1966] SCR 767, which held that only Parliament has jurisdiction to legislate on vital parts of federal undertakings, which include management and operation of the undertaking and labor relations.

The Salaire Minimum decision was affirmed and expanded in the Supreme Court of Canada's trilogy of 1988, namely Bell Canada v Quebec (Commission de la Santé et de la Sécurité du Travail), [1988] 1 RCS 749; Alltrans Express Ltd. v British Columbia (Workers' Compensation Board), [1988] 1 SCR 897; and Canadian National Railway Co. v Courtois, [1988] 1 SCR 868. The trilogy held that the management and operation of a federal undertaking include working conditions and labour relations. As a result, provincial statutes pertaining to health and safety are inapplicable to federal undertakings, which are the exclusive jurisdiction of Parliament.

Justice Roy held that there was no principled basis for distinguishing between the Corporation as an employer, or as a general contractor. The Act imposes the same obligations on both, and the impact of the Act on the management and operation of the federal undertaking is the same regardless of the role the Corporation plays at the construction site.

The Act is inapplicable to the Corporation as general contractor as the Act encroaches on the maintenance activities of the Seaway, which is a vital and essential element of the federal undertaking. In particular, Chapter X of the Act encompasses the powers of inspectors and Chapter XI contains occupational health and safety provisions specific to construction sites. The doctrine of interjurisdictional immunity prevents provincial legislation, such as the Act, from addressing areas of exclusive federal jurisdiction, including the management and operation of the St. Lawrence Seaway.

Justice Roy concluded by explaining that, in the present litigation, workers on the construction site were not unprotected since the Corporation had retained the services of outside contractors and these outside contractors were the ones acting as employers and thus subject to the Act, while the Corporation itself was subject to similar provisions in the Canada Labour Code.

Subsequent Judicial Proceedings

Request for leave to appeal to the Court of Appeal of Quebec (July 2016) was subsequently denied. The litigation was finally concluded when the Supreme Court of Canada refused to grant the CNESST leave to appeal (February 2017).

Applicability to Atlantic Provinces

This case will likely be persuasive in New Brunswick and the other Atlantic Provinces, as it followed the reasoning of the Supreme Court of Canada's trilogy, and relied on the common law doctrine of interjurisdictional immunity. Quebec judgments often have limited precedential value in common law jurisdictions, as they often rely on the Civil Code of Quebec, but Justice Roy's decision in this case is based entirely in common law principles that are applicable across Canada.

Justice Roy's ruling may have an impact on planned federal undertakings in Atlantic Canada, such as the Energy East pipeline project, if approved. The Supreme Court of Canada held in Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322, that interprovincial pipeline projects fell under federal jurisdiction as a federal undertaking. The same would likely be true of Energy East, as a project spanning multiple provinces.

Summary

• The 1988 trilogy pertaining to the inapplicability of occupational health and safety laws to federal undertakings was reaffirmed.
• Provincial health and safety legislation does not have jurisdiction on federal undertakings operating as general contractors on construction sites.
• The fact that the Corporation is not subject to health and safety legislation does not depend on its role, but rather on the effect of the Act on its operation and management as a federal undertaking.
• Even though the Act does not apply to federal undertakings, employees are protected by similar provisions of the Canada Labour Code and in cases where the federal undertaking retains outside contractors, the employees are still protected since the outside contractors are subject to the provincial health and safety legislation.