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Court File No. 37787 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL)

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Court File No. 37787 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL) Court File No. 37787 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) B E T W E E N: CANADA POST CORPORATION APPELLANT (Respondent) - and - CANADIAN UNION OF POSTAL WORKERS RESPONDENT (Appellant) - and - ATTORNEY GENERAL OF CANADA, DHL EXPRESS (CANADA), LTD., FEDERAL EXPRESS CANADA CORPORATION, PUROLATOR INC., TFI INTERNATIONAL INC. and UNITED PARCEL SERVICE CANADA LTD., FETCO INC. (FEDERALLY REGULATED EMPLOYERS – TRANSPORTATION AND COMMUNICATIONS), CANADIAN UNION OF PUBLIC EMPLOYEES and PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA, WORKERS’ HEALTH AND SAFETY LEGAL CLINIC, ROGERS COMMUNICATIONS INC., CANADIAN BROADCASTING CORPORATION, BELL CANADA, BELL TECHNICAL SOLUTIONS INC. and BELL MEDIA INC., MARITIME EMPLOYERS ASSOCIATION, THE HALIFAX EMPLOYERS ASSOCIATION and THE BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION, INTERNATIONAL LONGSHORE AND WAREHOUSE UNION OF CANADA, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 269, LOCAL 1341, LOCAL 1657, LOCAL 1825, and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 375 INTERVENERS FACTUM OF THE INTERVENER WORKERS’ HEALTH AND SAFETY LEGAL CLINIC (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) WORKERS’ HEALTH AND SAFETY SUPREME ADVOCACY LLP LEGAL CLINIC 340 Gilmour Street 2000 - 180 Dundas Street West, Box 4 Ottawa, ON K2P 0R3 Toronto, ON M5G 1Z8 Marie-France Major John Bartolomeo Tel: 613-695-8855 ex. 102 Jennifer Chan Fax: 613-695-8580 Doug Letto Email: [email protected] Tel: 416-971-8832 Fax: 416-971-8834 Agent for the Intervener,Workers’ Health Email: [email protected] and Safety Legal Clinic [email protected] [email protected] Counsel for the Intervener, Workers’ Health and Safety Legal Clinic TORYS LLP GOWLING WLG (CANADA) LLP 3000 - 79 Wellington Street West 2600 - 160 Elgin Street Box 270, TD Centre Ottawa, ON K1P 1C3 Toronto, ON M5K 1N2 Jeffrey W. Beedell Sheila Block Tel: 613-786-0171 Tel: 416-865-7319 Email: [email protected] Fax: 416-865-7380 Fax: 613-788-3587 Email: [email protected] John Terry Agent for the Appellant, Tel: 416-865-8245 Canada Post Corporation Email: [email protected] Jonathan Silver Tel: 416-865-8198 Email: [email protected] Counsel for the Appellant, Canada Post Corporation CAVALLUZZO LLP CONWAY BAXTER WILSON LLP 300 - 474 Bathurst Street 400 - 411 Roosevelt Avenue Toronto, ON M5T 2S6 Ottawa, ON K2A 3X9 Paul J. J. Cavalluzzo Owen Rees Tel: 416-964-1115 Tel: 613-780-2026 Fax: 416-694-5895 Fax: 613-688-0271 Email: [email protected] Email: [email protected] Amanda J. Pask David Taylor Tel: 416-964-1115 Tel: 613-691-0368 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, Canadian Union of Postal Workers Canadian Union of Postal Workers DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE 500 - 50 O’Connor Street 500 - 50 O’Connor Street Ottawa, ON K1A 0H8 Ottawa, ON K1A 0H8 Catherine Lawrence /Zoe Oxaal Christopher Rupar Tel: 613-670-6258 Tel: 613-6290 Fax: 613-954-1920 Fax: 613-954-1920 Email: [email protected] Email: [email protected] Counsel for the Intervener, Agent for the Intervener, Attorney General of Canada Attorney General of Canada HICKS MORLEY LLP HICKS MORLEY LLP 77 King Street West, 39th Floor 2000 - 150 Metcalfe Street Box 371, TD Centre Ottawa, ON K2P 1P1 Toronto, ON M5K 1K8 George G. Vuicic Michael A. Hines Tel: 613-234-0386 Tel: 416-864-7248 Fax: 613-234-0418 Fax: 416-362-9680 Email: [email protected] Email: [email protected] Agent for the Interveners, Lauri A. Reesor DHL Express (Canada), Ltd., Federal Tel: 416-864-7288 Express Canada Corporation, Purolator Inc., Email: [email protected] TFI International Inc. and United Parcel Service Canada Ltd. Gregory J. Power Tel: 416-864-7240 Email: [email protected] Counsel for the Interveners, DHL Express (Canada), Ltd., Federal Express Canada Corporation, Purolator Inc., TFI International Inc. and United Parcel Service Canada Ltd. FASKEN MARTINEAU DUMOULIN LLP FASKEN MARTINEAU DUMOULIN LLP Bay Adelaide Centre 1300 - 55 Metcalfe Street 2400 - 333 Bay Street Ottawa, ON K1P 6L5 Toronto, ON M5H 2T6 Sophie Arseneault Christopher Pigott Tel: 613-696-6904 Tel: 416-865-5475 Fax: 613-230-6423 Fax: 416-364-7813 Email: [email protected] Email: [email protected] Agent for the Intervener, Rachel Younan FETCO Inc. (Federally Regulated Employers Tel: 416-865-3478 – Transportation and Communications) Email: [email protected] Counsel for the Intervener, FETCO Inc. (Federally Regulated Employers – Transportation and Communications) GOLDBLATT PARTNERS LLP GOLDBLATT PARTNERS LLP 500 - 30 Metcalfe Street 500 - 30 Metcalfe Street Ottawa, ON L1P 5L4 Ottawa, ON L1P 5L4 Peter C. Engelmann Tel: 613-482-2452 Colleen Bauman Fax: 613-234-3041 Tel: 613-482-2463 Email: [email protected] Fax: 613-234-3041 Email: [email protected] Counsel for the Interveners, Canadian Union of Public Employees and Agent for the Interveners, Professional Institute of the Public Service Canadian Union of Public Employees and Canada Professional Institute of the Public Service Canada FASKEN MARTINEAU DUMOULIN LLP FASKEN MARTINEAU DUMOULIN LLP Bay Adelaide Centre 1300 - 55 Metcalfe Street 2400 - 333 Bay Street Ottawa, ON K1P 6L5 Toronto, ON M5H 2T6 Sophie Arseneault Brian Smeenk Tel: 613-696-6904 Tel: 416-868-3438 Fax: 613-230-6423 Fax: 416-364-7813 Email: [email protected] Email: [email protected] Agent for the Intervener, Counsel for the Intervener, Rogers Communications Inc. Rogers Communications Inc. BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP 900 - 1000 De La Gauchetière Street West World Exchange Plaza Montreal, QC H3B 5H4 1300 - 100 Queen Street Ottawa, ON K1P 1J9 Maryse Tremblay Tel: 514-954-2648 Nadia Effendi Fax: 514-954-1905 Tel: 613-237-5160 Email: [email protected] Fax: 613-230-8842 Email: [email protected] Mark Phillips Tel: 514-954-3198 Agent for the Interveners, Email: [email protected] Canadian Broadcasting Corporation, Bell Canada, Bell Technical Solutions Inc., and Soudeh Alikhani Bell Media Inc. Tel: 514-954-2519 Email: [email protected] Counsel for the Interveners, Canadian Broadcasting Corporation, Bell Canada, Bell Technical Solutions Inc., and Bell Media Inc. FASKEN MARTINEAU DUMOULIN LLP FASKEN MARTINEAU DUMOULIN LLP 3700 - 800 Victoria Square 1300 - 55 Metcalfe Street Montréal, QC H4Z 1E9 Ottawa, ON K1P 6L5 Stéphane Fillion Sophie Arseneault Tel: 514-397-4309 Tel: 613-696-6904 Fax: 514-397-7600 Fax: 613-230-6423 Email: [email protected] Email: [email protected] Michael Adams Agent for the Interveners, Tel: 514-397-4323 Maritime Employers Association, The Email: [email protected] Halifax Employers Association, and The British Columbia Maritime Employers Counsel for the Interveners, Association Maritime Employers Association, The Halifax Employers Association, and The British Columbia Maritime Employers Association VICTORY SQUARE LAW OFFICE GOLDBLATT PARTNERS LLP 710 - 777 Hornby Street 500 - 30 Metcalfe Street Vancouver, BC V6Z 1S4 Ottawa, ON L1P 5L4 Craig D. Bavis Colleen Bauman Tel: 604-684-8421 Tel: 613-482-2463 Fax: 604-684-8427 Fax: 613-234-3041 Email: [email protected] Email: [email protected] Counsel for the Interveners, Agent for the Interveners, International Longshore and Warehouse International Longshore and Warehouse Union Canada, International Union Canada, International Longshoremen’s Association, Local 269, Longshoremen’s Association, Local 269, Local 1341, Local 1657, Local 1825, and Local 1341, Local 1657, Local 1825, and Canadian Union of Public Employees, Local Canadian Union of Public Employees, Local 375 375 TABLE OF CONTENTS PAGE PART I OVERVIEW .............................................................................................................1 PART II INTERVENER’S POSITION ON THE QUESTIONS IN ISSUE ......................1 PART III STATEMENT OF ARGUMENT..........................................................................2 A. The Code Deserves a Broad and Liberal Interpretation ..............................2 B. Non-unionised Workers Deserve Particular Consideration ........................4 C. The Concept of “Work Place” Must Be Consistent ....................................7 PART IV COSTS .....................................................................................................................9 PART V NATURE OF ORDER SOUGHT ...........................................................................9 PART VI TABLE OF AUTHORITIES ...............................................................................10 PART VII STATUTES AND REGULATION ....................................................................11 1 PART I – OVERVIEW 1. The Workers’ Health and Safety Legal Clinic (“the Clinic”) represents non-unionised workers in the Province of Ontario. Its clients come from both federal and provincial jurisdictions who have been reprised against for exercising their rights under the relevant occupational health and safety legislation. 2. The Canada Labour Code1 (“the Code”) applies to federally regulated employers, no matter the size. While some employers may have the ability to address occupational health and safety issues with internal policies, not all employers have such capabilities. The Code serves as the legislated minimum that all workers can count upon for their protection. 3. In the non-unionised workplace, individual workers do not have the benefits of a union to provide the protection of collective
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