Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: SuperBowl commercials, mail carriers’ safety and Canadian administrative law

Part two of three of recent administrative law decisions by the Supreme Court of Canada

This article will look at part two of three administrative law decisions from the Supreme Court of Canada.

Last week, we looked at the much anticipated Vavilov decision, in which the Supreme Court of Canada rewrote the analytical framework to be applied in judicial reviews of the decisions of administrative decision makers.

READ PART ONE HERE: Kootnekoff: New analytical framework for administrative law cases

The Court applied this new framework in the second decision, Bell Canada v. Canada (Attorney General). This case considered how Canadian television stations substitute Canadian commercials for the American ones during U.S. television broadcasts aired on Canadian television stations, including the Super Bowl.

Doing this allows Canadian broadcasters to realize greater revenue, by selling commercial spots to Canadian advertisers.

In 2013, the CRTC was reviewing the entire regulatory framework of television. During this process, some Canadians complained about not being able to view U.S. commercials on Canadian television stations. In 2016, the CRTC issued an order prohibiting substituting American commercials with Canadian ones.

Bell had an exclusive licence from the NFL to broadcast the Super Bowl in Canada. It challenged the CRTC’s order.

In a 7: 2 decision, the majority of the Court held that the CRTC’s order was not authorized by the provision in the Broadcasting Act it relied on. That provision did not give the CRTC the authority to require broadcasters to show American commercials.

Seven judges were of the opinion that “because the issues in these appeals raise legal questions that go directly to the limits of the CRTC’s statutory grant of power, and therefore plainly fall within the scope of the statutory appeal mechanism referred to above, the applicable standard is correctness.”

A “correctness” standard means the underlying decision is more closely scrutinized by the court.

The result is that, unless the CRTC has another legislative provision to rely on, or the federal government amendments the legislation, Canadians will not be viewing U.S. Superbowl commercials on Canadian T.V.

The third decision in the trilogy, Canada Post Corp. v. Canadian Union of Postal Workers, involved safety issues on letter carrier routes. A health and safety officer found that Canada Post as employer failed to ensure that every part of the workplace was inspected annually.

An appeals officer concluded that the inspection obligation applied only to the parts of the workplace over which the employer has control. He concluded that this did not include letter carrier routes or points of call. On this basis, the original decision was rescinded.

The Federal Court of Appeal was more sympathetic to the Union. It overturned the appeals officer’s order.

In another 7:2 decision, the Supreme Court of Canada restored the appeals officer’s order. It decided that his interpretation of the workplace inspection obligation was “reasonable.”

The two dissenting judges considered that the appeals officer’s reasoning process was “deeply flawed.” They point out that safety inspections are “central” to protecting workers’ health and safety. Inspections “exist to proactively identify hazards before workers are exposed to them, and ensure that they will either be fixed or avoided.”

The dissenting judges stated that “safety inspections should be done in a way that protects employee safety as much as possible in the circumstances, not in a way that deprives whole categories of workers — those who work outside a physical building — from protection.”

“Just because inspections may be difficult does not mean that they do not have to be done at all, and just because hazards cannot be fixed entirely does not mean that nothing can be done to address them.”

This trilogy of cases opens the door for greater scrutiny by courts of decisions made by administrative decision makers.

The way that the majority applied the new Vavilov framework, particularly in Canada Post, creates many questions, and uncertainty. Some feel that the court has not yet gone far enough in rewriting the law in this area.

Until this area of law is again rewritten, Vavilov will be the starting point when challenging decisions of any administrative bodies within Canada.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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