A union has taken the unusual step of asking the Federal Court
to order the federal Minister of Labour to prosecute a company for
alleged safety violations.
In 2010, the Canadian Union of Public Employees and two other
unions, the Air Canada Pilots Association and the CAW, filed a
complaint with Human Resources and Skills Development Canada,
alleging that Air Canada was in violation of certain sections of
Part II (Occupational Health and Safety) of the Canada Labour
The alleged violations related to workplace violence concerns,
including failing to co-operate with the health and safety policy
committee and failing to choose an appropriate, impartial
person to investigate workplace violence. The complaint
asked that a Health and Safety Officer with HRSDC intervene.
A Health and Safety Officer investigated and found no
CUPE then applied to the court for an Order compelling an
HRSDC Health and Safety Officer to issue a direction to Air
Canada to end the alleged violations, and requiring the
Minister of Labour to prosecute Air Canada, or to permit CUPE to
prosecute Air Canada.
Madam Justice Kane decided that generally speaking, courts will
not determine whether a Health and Safety Officer should issue a
safety direction or what the direction should be. She also
stated that courts will not order the Minister of Labour to
prosecute for an alleged violation of the Canada Labour Code.
Lastly, she stated that courts will rarely interfere with the
Minister's discretion as to whether or not to lay charges.
This case is part of a trend of unions seeking safety charges
against companies. As we have previously mentioned on this
blog, the Ontario Federation of Labour has a campaign seeking more
criminal prosecutions against companies and supervisors alleged to
have committed serious safety breaches.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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