Canadian National Railway Co. v. Courtois [1988] 1 S.C.R. 868

Canadian National Railway Company Appellant

v.

Christiane Courtois and the Commission de la santé et de la sécurité du travail Respondents

and

The Attorney General of Quebec and the Attorney General of Canada Mis en cause

and between

Commission de la santé et de la sécurité du travail and Christiane Courtois Appellants

v.

Canadian National Railway Company Respondent

and

The Attorney General of Quebec and the Attorney General of Canada Mis en cause

Indexed as: Canadian National Railway Co. v. Courtois

File Nos.: 17663, 17768.

1986: January 28, 29, 30; 1988: May 26.

Présent: Dickson C.J. and Beetz, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for quebec

Constitutional law ‑‑ Applicability of provincial legislation ‑‑ Occupational Health and Safety ‑‑ Federal undertaking ‑‑ Provincial commission of inquiry ‑‑ Inquiry into railway accident involving trains of federal railway undertaking -- Commission created pursuant to provincial occupational health and safety statute -- Whether provincial statute regulating occupational health and safety conditions constitutionally applicable to federal undertaking -- Constitution Act, 1867, ss. 91(29), 92(10) ‑‑ Act respecting occupational health and safety, S.Q. 1979, c. 63, ss. 62, 177 to 193.

This appeal is part of a trilogy which also includes Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, and Alltrans Express Ltd. v. British Colombia (Workers' Compensation Board), [1988] 1 S.C.R. 897. The three appeals which raise similar questions were heard conseqcutively and were essentially consolidated for pruposes of the hearings. In Bell Canada the Court reviewed the rules applicable to the three cases and arrived at a constitutional characterization and classification of the Act respecting occupational health and safety, which is the subject of the case at bar and of Bell Canada.

As the result of a collision between two railway trains owned by CN in Quebec in which three employees of that federal undertaking lost their lives and a fourth was injured, an inspector of the Commission de la santé et de la sécurité du travail initiated an investigation into the railway accident and sent subpoenas to CN employees. The summons served on one of the employees also included a duces tecum. The subpoenas were issued under ss. 62 et 177 to 193 of the Act respecting occupational health and safety, which require an imployer to prepare an accident report and empower an inspector appointed by the commission to investigate and issue remedial orders obliging any person to comply with the Act or regulations and fixing a time within which such person must comply. CN then applied to the Superior Court for a writ of evocation on the ground, inter alia, that the Act does not constitutionally apply to it and that the inspector had no jurisdiction to hold the investigation. The application for the writ was allowed. The Court of Appeal reversed the judgment but authorized the writ of evocation to be issued to quash the duces tecum and prohibited the Commission and the inspector from investigating the internal workings of CN. This appeal raises the following constitutional question: whether ss. 62 et 177 to 193 of the Act respecting occupational health and safety are ultra vires, inapplicable or inoperative, in whole or in part, in respect of an interprovincial railway undertaking, whose railway works have been declared to be works for the general advantage of Canada. More particularly, can a provincial inquiry commission established pursuant to ss. 177 to 193 of the Act: (a) investigate and compel testimony by subpoena to determine the causes of a railway accident involving CN trains and to examine the occupational safety conditions of a federal railway undertaking? (b) make recommendations to correct the rules, practices and methods of operation of this federal undertaking in relation to the safety of personnel operating trains? and (c) require such recommendations to be implemented pursuant to ss. 182 to 193 of the Act?

Held: The appeal should be allowed and the cross-appeal dismissed. Sections 62 and 177 to 193 of the Act are wholly inapplicable to an interprovincial railway undertaking, including railway works declared to be for the general advantage of Canada. The subquestions should be answered in the negative.

Because of its preventive nature, the Act respecting occupational health and safety inevitably regulates, directly and massively, the working conditions, labour relations and management of the undertakings to which it applies, and for these reasons it is inapplicable to federal undertakings: Bell Canada. Chapter X of the Act, which includes ss. 177 to 193, must be characterized and classified like the Act, as it is a key part of its prevention policy and an essential means of attaining the object of the Act, mentioned in s. 2: "the elimination, at the source, of dangers to the health, safety and physical well-being of workers". It follows that Chapter X of the Act is inapplicable to CN and that, lacking any legal basis other than the provisions of this chapter, the investigation conducted by the inspector of the Commission de la santé et de la sécurité au travail was undertaken without the inspector having the power to do so. The effect of the investigation on the federal undertaking is not relevant. The Superior Court judgment must be restored.

The Court of Appeal made a fundamental error in concentrating on the power of the Commission to initiate an investigation and on the limits of such power, but virtually forgetting the principal question, the characterization and general classification of the Act creating the investigative power. The first question should have focussed on what authority the Commission could initiate an investigation. As the source of this authority could only be in the Act, it was necessary to characterize and classify the Act in constitutional terms in order to decide whether it applies to federal undertakings. This essential part of the analysis was overlooked.

The Court of appeal made another error as it did not distinguish between free investigations or free collection of information and compulsory investigations which must be based on a specific constitutional power. The Court of Appeal and respondents appeared to consider mistakenly the compulsory investigation as an end in itself, regardless of the field with which it is concerned.

Finally, respondents' submission that the inspector's report contained mere recommendations is not tenable: the coercion lies in the instituting and holding of the investigation itself, and it is this coercion which requires a constitutional justification.

Cases Cited

Followed: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; referred to: Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Faber v. The Queen, [1976] 2 S.C.R. 9; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Alltrans Express Ltd. v. British Colombia (Workers' Compensation Board), [1988] 1 S.C.R. 897.

Statutes and Regulations Cited

Act respecting occupational health and safety, S.Q. 1979, c. 63, ss. 2, 62, 160, 161, 177 to 193.

Constitutional Act, 1867, ss. 91(29), 92(10).

Workmen's Compensation Act, R.S.Q. 1977, c. A‑3, s. 91 [repl. 1978, c. 57, s. 47; repl. 1979, c. 63, s. 264].

APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 31, 5 D.L.R. (4th) 36, allowing in part an appeal by respondents from a judgment of the Superior Court, [1982] C.S. 99, which authorized a writ of evocation to be issued. Appeal allowed and cross-appeal dismissed.

Daniel Chénard and François Aquin, for the appellant.

Yves Tardif and Henri Brun, for the respondents.

Jean‑François Jobin, for the mis en cause the Attorney General of Quebec.

Gaspard Côté, Q.C., for the mis en cause the Attorney General of Canada.

English version of the judgment of the Court delivered by

Beetz J. ‑‑

I‑‑ Introduction

This appeal is the second in a trilogy which also includes Alltrans Express Ltd. v. British Colombia (Workers' Compensation Board), [1988] 1 S.C.R. 897, and Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 ("Bell Canada").

The three appeals raise similar questions which can be stated as one: is a provincial statute regulating health and safety conditions in the workplace, like the statutes at issue, contitutionally applicable to a federal undertaking?

As explained in Bell Canada, in which the reasons for judgment were written first, the three appeals were heard consecutively and essentially joined for purposes of hearing. In Bell Canada the Court reviewed the rules applicable to the three cases and arrived at a constitutional characterization and classification of the Act respecting occupational health and safety, S.Q. 1979, c. 63 (the "Act"), which is the subject of the case at bar and of Bell Canada.

II‑‑ Impugned Legislation

The particular legislation allegedly serving as legal basis for the investigation held into the railway accident giving rise to the case at bar is cited in Bell Canada, but it will be necessary to cite it again. The provisions are contained in Chapter X of the Act, entitled "Inspection", and include all the sections in that chapter, namely ss. 177 to 193. They also include ss. 160 and 161, to which s. 178 refers, and s. 62.

These provisions read as follows:

62. Every employer must inform the regional chief inspector of an incident, by the most rapid means of communication, and, within 24 hours, make a written report to him, in the form and with the information prescribed by regulation, if it has caused

(1) the death of a worker;

(2) such serious injury to a worker as probably to prevent him from performing his work for ten consecutive working days;

(3) such serious injuries to several workers as probably to prevent them from performing their work for one working day; or

(4) material damage valued at $50 000 or more.

The employer shall also inform the health and safety committee and the safety representative.

The scene of the incident must remain unchanged until it has been investigated by the inspector, except to prevent an aggravation of its consequences, or unless the inspector authorizes a change.

Copy of the employer's report must be transmitted without delay to the health and safety committee, the safety representative and the certified association.

177. For the purposes of the application of this act and the regulations, inspectors and regional chief inspectors shall be appointed and remunerated in accordance with the Civil Service Act.

178. Sections 160 and 161 apply to an inpsector or regional chief inspector appointed under s. 177.

Sections 160 and 161 provide:

160. For the exercise of its powers, the Commission or a person designated by it may inquire into any matter within its jurisdiction. The Commission or the designated person is vested with the powers and immunity of commissioners appointed under the Act repecting public inquiry commissions (R.S.Q., c. C-37), except the power to impose imprisonment.

A person designated to make an inquiry shall not disclose information obtained during the inquiry except in the performance of his duties or with the authorization of the Commission or a tribunal.

161. Neither the Commission, the members of its board of directors, its vice-chairmen nor its officers may be sued by reason of official acts done by them in good faith in the exercise of their functions.

The reminder of chapter X contains the following provisions:

179. An inspector, in the performance of his duties, may, at any reasonable hour of the day or night, enter a place where activities are carried on in the fields contemplated in this act and the regulations.

An inspector acting under this section has access to all the books, registers and records of any employer, principal contractor, supplier or other person carrying on an activity in the fields contemplated by this act and the regulations. A person having custody, possession or control of these books, registers or records shall give communication of them to the inspector and facilitate his examination of them.

An inspector shall, on demand, produce a certificate of his office.

If the investigation is to be made in a place wholly or partly used as a dwelling, the inspector must, to carry out his duties, have a search warrant issued under the Summary Convictions Act (R.S.Q., c. P-15) or the written consent of the occupant.

180. The inspector may, in addition to his general powers,

(1) investigate any matter within his competence;

(2) require the employer or principal contractor, whichever is the case, to produce the plan of the installations and of the layout of the equipment;

(3) take, free of charge, samples of any kind, particularly of objects used by the workers, for analysis; he must then inform the employer and, if possible, return the samples to him after analysis;

(4) conduct tests and make photographs or recordings at a workplace;

(5) in order to ensure that a building, a structure or civil engineering works are stable, require the employer, principal contractor or owner to produce an attestation of solidity signed by an engineer or architect, or an attestation comtemplated in section 54;

(6) in such cases as he may determine, instal a measuring device at a workplace, or cause it to be worn by a worker with the worker's written consent, or order the employer to instal it or cause it to be worn at the time and place the inspector indicates, and require the employer to transmit the data on the terms and conditions the inspector determines;

(7) be accompanied by one or more persons of his choice while performing his duties.

181. On arriving at a workplace, and before making reasonable steps to advise the employer, an inpector shall take resonable steps to advise the employer, the certified association and the prevention officer. On a construction site, he shall advise the principal contractor and the safety representative.

182. If he considers it advisable, an inspector may issue a remedial order requiring a person to comply with this act or the regulations, and fix the time in which he must comply.

183. The inspector shall communicate the findings of his investigation or inspection to the employer, the certified association, the job-site committee, the health and safety committee, the safety representative and the head of the community health department; he shall send them a copy of any remedial order. If there is no committee, the employer shall post up copies of the remedial order in a sufficient number of conspicuous places easily accessible to the workers to ensure that they are informed.

184. A person to whom an inspector has given an remedial order shall carry out in the appointed time, and inform the certified association, the health and safety committee, the safety representative and the inspector, as soon as possible, of the specific measures he intends to take.

185. No person may hinder an inspector in the performance of his duties, mislead or attempt to mislead him by concealment or false or untruthful statements, refuse to give his surname, given names and address to the inspector or neglect to obey an order he may give under this act or the regulations.

186. An inspector may order the suspension of work or the complete or partial shut-down of a workplace and, if necessary, affix seals, if he considers a worker's health, safety or physical well-being to be endangered.

The inspector shall substantiate his decision in writing as soon as possible and indicate the steps to be taken to eliminate the danger.

Section 183 applies, mutatis mutandis, to the inspector's order.

187. During a suspension of work or a shut-down, the workers are deemed to be at work and therefore entitled to the wages and social benefits related to their work.

188. No person may be admitted to a workplace shut down by an inspector except, with his authorization, to do the necessary work to eliminate the danger.

However, the application of the first paragraph cannot prevent an employer, principal contractor or owner from taking such conservation measures as are necessary to avoid the destruction or serious deterioration of the moveable or immoveable property in the workplace.

189. Work shall not be resumed nor the workplace reopened until authorized by the inspector.

Section 183 applies, mutatis mutandis, to the inspector's authorization.

190. Where a person contravenes this act of the regulations, an inspector may order him to cease making, supplying, selling, leasing, distributing or installing the product, process, equipment, material, contaminant or dangerous substance concerned, and affix seals or confiscate such objects and order the person to cease every activity that might cause the emission of the contaminant concerned.

The inpector shall substantiate his decision in writing, indicating, where that is the case, the steps to be taken to bring the product, process, equipment, material, contaminant or dangerous substance, or the activity that might cause the emission of the contaminant, into conformity with the act and the regulations.

The person is prohibited from again making, supplying, selling, leasing, distributing or installing the product, process, equipment, material, contaminant or dangerous substance, or resuming the activity that might cause the emission of the contaminant, until authorized by the inspector.

Section 183 applies, mutatis mutandis, to the inspector's order or authorization.

191. An inspector's order or decision is executory until reviewed by the regional chief inspector.

192. A regional chief inspector's order or decision is executory until reviewed by the Commission.

The Commission's decision is final and without appeal.

193. The inspectors, regional chief inspectors and personnel required for the application of this chapter and of Division V of Chapter XI are responsible to such member of the Executive Council or such body as the Government may designate.

III‑‑Constitutional Question

At the request of appellant company and with the consent of respondents and the mis en cause, the following constitutional question was stated pursuant to s. 32 of the Rules of this Court:

Are sections 62 and 177 to 193 of the Act respecting occupational health and safety (S.Q. 1979, c. 63 and S.Q. 1980, c. 11; Revised statutes of Quebec, c. S‑2.1), ultra vires, inapplicable or inoperative, in whole or in part, in respect of an interprovincial railway company, whose railway works have been declared to be works for the general advantage of Canada?

And more particularly:

(1) Are occupational safety conditions for employees working for an interprovincial railway undertaking which has been declared for the general advantage of Canada working conditions?

(2) Are working conditions and occupational safety conditions within an interprovincial railway undertaking declared for the general advantage of Canada an integral part of the operation and management of that undertaking and hence within exclusive federaljurisdiction?

(3) Can a provincial inquiry commission established pursuant to ss. 177 to 193 of an Act respecting occupational health and safety:

a) investigate and compel testimony by subpoena, to determine the causes of a railway accident involving trains of the Canadian National Railway Company and to examine the occupational safety conditions of a federal railway undertaking?

b) make recommendations to correct the rules, practices and methods of operation of this federal undertaking in relation to the safety of personnel operating trains?

c) require such recommendations to be implemented pursuant to ss. 182 to 193 of an Act respecting occupational health and safety?

This consitutional question includes two unusual subquestions, (1) and (2). These are not in fact strictly speaking constitutional questions. They are primarily concerned with the reasons for answering in the affirmative the "inapplicability" aspect of the principal question and they are more like reasons for judgment than a formal judgment. I therefore do not consider it necessary to answer these two subquestions formally: suffice it to say that the reasons given in Bell Canada require an affirmative response to these subquestions in both cases.

The answer to subquestion (3) follows logically from the answer required to the principal question. It is therefore not absolutely necessary to answer it, but I propose to do so as it is better to be explicit.

IV ‑‑ Facts and Proceedings to Which They Gave Rise

Appellant undertaking described the facts in its factum in part as follows:

[translation] On september 25, 1981 two railway trains owned by appellant and carrying goods were involved in a head-on collision near Lac Bouchette, in the vicinity of Jonquière, province of Quebec. The accident occurred in the middle of woodland on a railway line owned by appellant.

Three of appellant's employees lost their lives in this accident and another was injured. Appellant's employees who were involved in the accident were members of the Brotherhood of Locomotive Engineers or the United Transportation Union, two unions governed by the Canada Labour Code, (R.C.S. 1970, c. L‑1).

In accordance with the Railway Act, (R.C.S. 1970, c. R‑2), an investigation was immediately begun by a special investigator of the Canadian Transport Commission, pursuant to the National transportation Act, (R.C.S 1970, c. N‑17).

On December 8, 1981 respondent Christiane Courtois, an inspector employed by the other respondent, la Commission de la santé et de la sécurité du travail, a public corporation created by the Act respecting occupational health and safety (S.Q. 1979, c. 63) served subpoenas on certain employees of appellant for the purpose of conducting an investigation into the accident in question.

These subpoenas were issued under ss. 62, 178 and 180 of the Act respecting occupational health and safety, as indicated by the summonses sent to Mr. Gilles Goulet, a managerial employee of CN, and to five unionized employees who were members of a union covered by the Canada Labour Code, R.S.C. 1970, c. L‑1.

The summons served on Mr. Gilles Goulet included a duces tecum:

[translation] You are further directed to bring the following documents with you:

‑‑ a copy of the report on the investigation conducted by Canadian National;

‑‑ the regulations in issue;

‑‑ the general plans of Canadian National facilities along the prescribed route for both trains, indicating signal lights, stations, sidings, means of communication and so on;

‑‑ registers or documents (log book) giving an account of the said journey resulting int he accident, for an period of thirty days preceding the accident, and for both trains concerned;

‑‑ any relevant document which may assist in the conduct of this investigation.

Some days earlier, on November 30, 1981, an application for an interlocutory injunction to prohibit the holding of an investigation by the Commission de la santé et de la sécurité du travail ("C.S.S.T.") and inspector Courtois into the Lac Bouchette accident had been dismissed by Boudreault J. of the Superior Court: Cie des chemins de fer nationaux du Canada v. Commission de la santé et de la sécurité du travail, [1981] C.S. 1095.

Appellant company's factum continued its account of the proceedings as follows:

[translation] ... applicant caused a motion for a writ of evocation to be served and filed in the Superior Court for the judicial district of Montréal. On March 10, 1982 Jean‑Marie Brassard J., a judge of the Superior Court, allowed applicant's motion and authorized a writ of evocation to be issued, directing respondents to stay all proceedings and to forward to the Registrar of the Superior Court for the district of Montréal within (15) fifteen days the record of the case and all documents relating thereto.

Respondents appealed from this judgment to the Court of Appeal of the province of Quebec. Following a hearing on October 14, 1982 the Court of Appeal, with Dubé J.A. dissenting, allowed respondents' appeal in part.

By its judgement the Court of Appeal reversed the judgement of the Superior Court, [1982] C.S. 99, but authorized a writ of evocation to be issued in respect of the duces tecum and prohibited the C.S.S.T. and inspector Courtois from directly or indirectly investigating the internal workings of the Canadian National Railway Company: [1983] C.A. 31.

The principal appeal is against this judgment of the Quebec Court of Appeal. By a cross-appeal, the C.S.S.T. and inspector Courtois challenged the part of the Court of Appeal's judgment which authorized a writ of evocation to be issued in respect of the duces tecum.

In view of the refusal of the interlocutory injunction mentioned above, inspector Courtois proceeded with her investigation and filed a report of some twenty pages, not including appendices.

This report analysed the possible causes of the railway collision and concluded as follows:

[translation]

3.5 Cause of Accident:

Failure to carry out a train order according to its terms.

3.6 Factors Relating to Work Environment:

1‑‑ The present communication system makes it impossible to receive conversations on another train or even ensure clear communications with another train or station that could be a means of exercising control over the implementation of train orders.

2‑‑ When a crossing is scheduled by a train order, no technical assistance is provided to remind the crew of the location of the crossing, such as a communication or signal light at that location. There is nothing to tell them that another train is nearby, unless they happen to overhear a radio conversation.

3‑‑ Night schedule: it is generally admitted that crews may be less alert on a night shift. A train crew must also adapt to the monotony of the journey (a large part of which is in the middle of woodland), the regular noise of the wheels on the rails, the swaying motion of the train and the limited number of physical activities as such connected with movement of the train: observation, forms to be completed, controlling power . . . three members of the 428 crew were regular members and were on their third night shift for the week; the fourth member was a replacement and on his first night shift for the week. The three regular members had at least twenty-five years of service, including several years on night shifts. The fourth member had already made some thirty journeys between Jonquière and Garneau. Accordingly, the night work, the repetitive nature of the journey, its monotony, their confidence in each other, all meant that over a period of time each member of the crew became less alert.

4.0 Recommendations:

1‑‑ I recommend that from now on Canadian National advise the regional chief inspector of any accident as required by s. 62 of the Act respecting occupational health and safety.

2‑‑ I recommend, pursuant to s. 51.5 of the AOHS, that Canadian National submit to the CSST a schedule in which the company describes the stages for implementing an effective communication system that will ensure communication at all time and all points on the line, between two trains or between a train and a control point (dispatcher in Montréal or operator in a station on the line). With the help of this communication system, the company will set up a control procedure to ensure that train orders are implemented. This procedure should provide for frequent communications with train crews. I should be submitted to the CSST at the same time as the aforementioned schedule.

3‑‑ I recommend that in the meantime, in accordance with s. 51.5 of the AOHS, a temporary measure be used to remind train crews of the anticipated location of a crossing. This measure might, for example, be reconfirming at the last station (where an operator is on duty) before a crossing, the scheduled location of that crossing or choosing as crossing points only places where an operator is on duty twenty-four hours a day, and where a visual signal can be used to halt the train.

This report is dated March 5, 1982 and precedes the Surperior Court judgment by five days. It was however filed with the Registry of the Superior Court after the Superior Court judgment, but several months before the Court of Appeal hearing. The Superior Court judge therefore was unable to take it into consideration. The report was also not drawn to the attention of the Court at the hearing of the application for leave to file a cross-appeal made by the C.S.S.T. and inspector Courtois. The parties then agreed on incorporating the report into the appeal case.

V‑‑ Superior Court and Court of Appeal Judgments

Àt page 103 of his reasons the trial judge referred to ss. 92(10)a. c. and 91(29) of the Constitution Act, 1867 and reviewed part of the case law on interprovincial railways, concluding at pp. 103-4:

[translation] From these cases it has to be concluded that everything concerning the operation and safety of an interprovincial railway is a field outside the jurisdiction of a provincial civil servant.

At page 104, he noted the investigation into the railway collision by the Canadian Transport Commission pursuant to the Railway Act, and he observed that following the investigation that Commission may [translation] "make orders and issue regulations affecting the operating methods and internal rules of applicant". On the same page, he wrote:

[translation] It must therefore be concluded that the jurisdiction to investigate the railway accident at Lac Bouchette belongs to the Canadian Transport Commission and . . . there should only be a single authority and a single tribunal in safety matters.

The trial judge then considered cases in which federal undertakings have continued to be covered by provincial statutes of general application, subject to the exclusive authority of Parliament when that power is an integral part of its primary jurisdiction over such undetakings. At page 105, he posed the following questions:

[translation] The question therefore is whether application of the provincial statute under which the Lac Bouchette accident was investigated will have necessary and conclusive effects on the operations of applicant.

From another perspective, it may also be asked: who is consitutionally empowered to conduct such an investigation in Canada?

To answer these questions, the trial judge cited, at p. 105, passages from Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218 ("Keable 1979"), according to which a provincial commission of inquiry investigating certain specific crimes allegedly committed by the police cannot be empowered by a province to investigate a federal institution such as the R.C.M.P., its services, rules, policies and procedures, so as to make recommendations on changes to be made to those rules and methods.

At pages 105-6 of his reasons, the trial judge drew the following lessons from Keable 1979:

[translation] It accordingly follows that the powers of the investigator are limited by the distribution of legislative powers under the B.N.A. Act.

The investigation here is concerned with worker safety, which under s. 92(13) regarding property and civil rights is within provincial jurisdiction, but can it avoid being at the same time an investigation into CN, a federal undertaking, and into its working methods and operations?

For example, the subpoena sent to Mr. Gilles Goulet, a managerial employee of applicant, asked him to bring certain documents including the general plans of Canadian National for the length of the prescribed route for both trains, indicating signal lights, stations, sidings and means of communication; registers or documents giving an account of the said route on which the accident took place, for a period of thirty days preceding the accident, for both trains concerned; a copy of the report of the investigation done by Canadian National; and the regulations in question.

In its argument the Commission made a distinction between the investigation itself and the recommendations or remedial orders which might result.

The principal purpose of this investigation was to identify the causes of the accident, and also at the same time necessarily the safety problems revealed by the accident. Section 2 of the Act respecting occupational health and safety states that the objective of the Act is the elimination of dangers to the health, safety and physical well-being of workers. The explanatory notes on the bill mention that it recongnizes the right of workers to working conditions that protect their health, safety and physical well-being.

Àt page 106, referring to the purposes of the investigation, the trial judge wrote:

[translation] These purposes are not only to identify the causes of the accident but to make recommendations for the correction of rules, practices and operating methods and to make the said recommendations or corrections compulsory under ss. 182 to 193 of the Act respecting occupational health and safety.

The investigation accordingly sought to identify the causes of the accident so as to discover what working conditions might entail dangers and should be eliminated in the interests of worker safety.

Such elimination could not occur without recommendations and remedial orders, and without becoming involved in the various facets of applicant's management.

At pages 107-8 the trial jedge relied on cases such as Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 ("Bell Canada 1966") and at p. 108 he held:

[translation] In conclusion, although the investigation may be of significance for worker safety in this province, and in particular for workers on provincial railways, it cannot help having convlusive effects on the operations of applicant, which is a federal undertaking. . . .

There are other causes, such as defective equipment and improper working methods, and theses causes are an integral part of applicant's operations. In short, safety on the job, working conditions, operating methods, are a vital part of operation of the railway. Moreover, as it is an interprovincial railway, the Commisison cannot issue orders, or remedial orders, to regulate the safety of applicant's employees.

The Court does not think it is possible to make a distinction between the investigation itself and the recommendations and orders which follow, because the purpose sought and the means of attaining it make up a single whole: the aim of the investigation, the remedial orders and their implementation is to improve safety.

Finally, the trial judge concluded at pp. 110-11 that the Act and Part IV of the Canada Labour Code, R.S.C. 1970, c. L‑1, are inconsistent, at least so far as the sections dealing with remedial orders are concerned.

In the Court of Appeal the first reasons for judgment were those of the dissenting judge, Dubé J.A. At page 36, he wrote:

[translation] . . . nothing precludes agencies created by provincial statutes applying to agencies governed by federal statutes, but [only] so long as those provincial agencies do not in any way affect the internal administration and workings of the federal agencies; and provided also that the statutes governing the said provincial agencies are not inconsistent with the statutes governing the federal agencies.

Dubé J.A. then cited a passage from Keable 1979, including the following extract:

While members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force.

Dubé J.A. then reviewed part of the case law, inlcuding Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367, and Bell Canada 1966, and he concluded at p. 38:

[translation] After considering the foregoing case law and many other Supreme Court cases, I think one must necessarily conclude as did the trial judge that in view of the objectives of the investigation undertaken by appellants it was an improper interference in the administration and operations of a federal company: the unavoidable conclusion is that, in ordering such an investigation, the Commission de la santé et de la sécurité du travail exceeded its jurisdiction.

The majority reasons of the Court of Appeal were written by bisson J.A. Kaufman J.A. concurred with him.

Bisson J.A. began his reasons as follows, at p. 38:

[translation] Though I am in agreement with many of the propositions stated by my brother Dubé J.A. in his opinion, I cannot conclude in such general terms as he did that appellants were divested of all power to undertake an investigation following the railway accident at Lac Bouchette.

On the same page, he defined the question:

[translation] I would define the problem before the Court as follows: are appellants barred from instituting an investigation solely because the undertaking involved in the incident being investigated falls within the legislative jurisdiction of Parliament?

At page 39, Bisson J.A. noted that in Quebec as in other provinces there are railways which fall within exclusive provincial jurisdiction. He then wrote:

[translation] I would like to discuss another concept: the fields of labour, of the person and protection for the person, are primarily within provincial legislative jurisdiction. Property and its protection from damage are also within that jurisdiction.

Adopting the absolutist argument suggested by respondent necessarily leads to saying that some undertakings within the legislative authority of Parliament are an exclusive preserve which cannot be entered by any provincial authority.

Bisson J.A. then observed that the C.S.S.T. is vested with the powers and duties of the former Commission des accidents du travail and he observed:

[translation] Às such, the Commission may very well have to conduct an investigation into the causes of a railway accident to determine, for example, whether a subrogatory remedy can be exercised against a third party who is responsible.

Bisson J.A. mentioned other examples of problems that would arise if provincial authorities were constitutionally powerless to conduct an investigation:

[translation] Similarly, if a provincial agency is investigating pollution in a waterway or cultivated land alongside respondent's railway, it would not be able to summon respondent's representatives before it to determine whether the polluting material came from railway trains.

At 40, he noted:

[translation] In the case at bar, appellants' investigation does not in itself conflict with that undertaken by the federal government, in the sense that by appearing in the first respondent will necessarily impede the second.

Later, at p. 41, he said:

[translation] I do not see how an effort to determine the cause of a railway accident falls within the exclusive jurisdiction of an agency created by Parliament.

Thus, the Constitution Act, 1867 giving the provinces jurisdiction over the administration of justice contains no provision barring provincial authorities such as the coroner, the Quebec Provincial Police and others from investigating a railway accident.

Back at page 39, Bisson J.A. wrote:

[translation] I return to the railway accident. It may be, for example, that an accident was caused by a defective piece of equipment.

Appellants have a reason for wanting to know this, since the same piece may be used by provincial railway undertakings.

Along the same lines he wrote, at p. 41:

[translation] . . . Serge Gauthier mentioned the possibility that an investigation conducted by the Commission might lead, for example, to the corection of a piece of equipment, which could be of great importance to railways under exclusively provincial jurisdiction.

At pages 40-41, Bisson J.A. said he considered it premature to examine the legality of the remedial orders which inspector Courtois might theoretically give. (It will be recalled that the Court of Appeal was not aware of inspector Courtois' report.)

At pages 41-42, Bisson J.A. concluded the first part of his reasons as follows:

[translation] In short, again subject to the reservation I mentioned and which I will discuss more fully below, regarding the content of the summons, nothing affects what constitutes the "vital part of the operation of an interprovincial undertaken as a going concern", to use the wording of Martland J. speaking for the [Supreme] Court in Commission du salaire minimum v. Bell Telephone Co. of Canada.

On this basis, I don not consider taht in tis general search for a prohibition of any investigation by appellants, respondent can find support in the case to which it referred the Court: A.G. of Alberta v. Putnam, [1981] 2 S.C.R. 267.

What the Court disapproved in that case, as it also did in A.G. of Quebec v. P.G. du Canada [Keable 1979], is the intrusion of a provincial authority into the internal workings of an agency within the authority of Parliament, in both cases the R.C.M.P.

Here, conducted within the limits which it need observe, appellants' investigation must bear upon the accident on September 25, 1981, not respondent's administration or the federal regulations regarding railway operation.

I conclude that there is no basis for finding that:

1.‑ the Act respecting occupational health and safety is entirely inapplicable to respondent;

2.‑ this Act is inoperative because it conflicts with a statute of Parliament; and

3.‑ the Court should at this time, subject to the reservation regarding the content of the summons, rule that in undertaking an investigation into the railway accident of September 25, 1981 appellants acted outside their jurisdiction.

Finally, at page 42, Bisson J.A. arrvied at the reservations he had regarding the duces tecum:

[translation] I now come to the reservation I mentioned at the start of this opinion.

I base this reservation on several cases aptly cited my brother Dubé J.A. In particular I would mention C.P.R. Co. v. Corp. of the Parish of Notre‑Dame de Bonsecours; Construction Montcalm Inc. v. Commission du salaire minimum; A.G. du Quebec v. A.G. of Canada.

I would state this reservation in part as follows:

‑‑there could be no question that the investigation undertaken by appellants is to be an investigation into the operations of respondent and its internal workings;

‑‑similarly, appellants' investigation should not in any way conflict with that of the federal government;

‑‑appellants' investigation cannot lead them into fields within the exclusive jurisdiction of the federal government.

To illustrate, while the result of the investigation could lead to recommendations regarding a piece of equipment, it could not, for example, relate to respondent's railway signal mechanism.

It is immediately apparent that appellants will have to keep within narrow boundaries which they cannot cross without running the risk of being forced to shift their focus.

However, to go from this saying that they cannot conduct any investigation is a step I am not prepared to take.

Bisson J.A. therefore allowed in part the motion for evocation to set aside the duces tecum in its entirety.

VI‑‑Arguments Made by Respondents in Support of Court of Appeal Judgment and Their Cross-Appeal

Respondent's position can be summarized in a few fundamental propositions which I take from their factum, though I am not quoting them in the order in which they appear there:

[translation]

1. "the legislation in question applies to appellant because its pith and substance is not to regulate labour relations or working conditions;"

2. "Sections 62 and 177 to 193 of the O.H.S.A. apply in the context of a statute the pith and substance of which is worker health and safety;"

3. "Chapter X of the Act respecting occupationalhealth and safey . . . which deals with inspection, that is ss. 177 to 193, is designed inter alia to ensure that the objectives of the Act are attained and that it is applied in its entirety; the Act confers powers on inspectors for this purpose."

4. "In light of s. 2, which states that the object is"the elimination, at the source, of dangers to the health, safety and physical well-being of workers", it may be concluded that the pith and substance of Chapter X of the O.H.S.A. is to give effect to this policy on worker health and safety by empowering the C.S.S.T. to make decisions in concreto regarding situations that might interfere with that purpose."

To these basic arguments respondents added certain otheres under the heading [translation] "Effect of provisions in question on appellant". These additional arguments are as follows:

a) The investigation must be distinguished from the remedial orders.

The investigation itself, which made five employees of the railway undertaking unavailable for work for a few hours, does not affect a vital part of the operations of the undertaking any more than did the coroner's inquest held into the death of three of the accident victims. The "essentially harmless" duces tecum "as to time (thirty days), as to space (the section where the accident occurred) and as to action (the accident on September 25, 1981)".

b) Remedial orders do not necessarily follow on investigation.

c) Remedial ordersmay be issued to third parties.

In this regard respondents adopted, with slight differences, one of the Court of Appeal's arguments. After noting that an accident may have been caused by a piece of defective equipment or a procedural error, they wrote:

[translation] In the first case, the inspector could have issued a remedial order to the manufacturer directing it to correct the design used on this piece which equips all railway cars, including the railway cars of an intraprovincial railway.

Finally, if there was really a procedural error that could recur in any of the railway operations in the province, could the inspector not use the experience acquired in this investigation to determine whether this procedure is in effect in such companies before undertaking an investigation and ordering the appropriate corrective action?

d) The inspector only made recommendations.

e) There was no attempt to apply the recommendations.

f) To be inapplicable, the remedial order must affect a vital part of the federal undertaking, which would not be true of at least the first recommendation of inspector Courtois, even if it was a remedial order.

g) The prevention imposed by the Act is the complement of the Workmen's Compensation Act, R.S.Q. 1977, c. A‑3.

h) The investigation may come under the Workmen's Compensation Act.

Finally, respondents maintained that the Act does not conflict with any federal legislation.

VII‑‑ Discussion

The principal arguments put forward by respondents and some of their additional arguments concern the characterization and classification of the Act taken as a whole, including its Chapter X. In Bell Canada, the third case in this trilogy, I endeavour to show that because of its preventive nature, the Act inevitably regulates, directly and massively, the working conditions, labour relations and management of the undertakings to which it applies, and that for these reasons it is inapplicable to federal undertakings. Chapter X must be characterized and classified like the Act, as it is a key part of its prevention policy and an essential means of attaining the objective of the Act, mentioned in s. 2: "the elimination, at the source, of dangers to the health, safety and physical well-being of workers".

It follows that Chapter X of the Act is inapplicable to appellant and that, lacking any legal basis other than the provisions of this chapter, the investigation conducted by inspector Courtois was undertaken without the latter having the power to do so. The effect of this investigation on the federal undertaking is not relevant. This is a sufficient basis for allowing the appeal, dismissing the cross-appeal and restoring the Superior Court judgment.

This being the case, the discussion could end at this point; however, the reasons of the Court of Appeal and some of the grounds raised by respondents require, in my view, some further comment.

The cardinal error made by the Court of Appeal, with the greatest respect, is indicated by its definition of the problem before it. The error consists in concentrating on the power of the C.S.S.T. to initiate an investigation and on the limits of such power, but virtually forgetting the principal question, the characterization and general classification of the statute creating the investigative power, from which the investigation derives its own characterization and classification.

The characterization and classification of the Act were only touched upon, in an oblique manner, in less than four lines of the majority reasons of the Court of Appeal (at p. 39):

[translation] . . . the fields of labour, of the person and protection for the person, are primarily within provincial legislative jurisdiction. Property and its protection from damage are also within that jurisdiction.

By proceeding in this way, the Court of Appeal to a degree assumed, without really discussing the point, that the C.S.S.T. has the necessary jurisdiction to initiate an investigation, and it was not until the end of its reasons, in connection with the duces tecum, that the Court considered the limits of a power which it had already implicitly recognized in principle. This is the reverse of what should have been done. The firts question should have focussed on what authority the C.S.S.T. could initiate an investigation. As the source of this authority could only be in the Act, it was necessary to characterize and classify the Act in constitutional terms in order to decide whether it applies to federal undertakings. This essential part of the analysis was overload.

Another error made by the Court of Appeal, perhaps related to the first, is that the Court apparently did not distinguish between free investigations or free collection of information and compulsory investigations which must be based on a specific constitutaionl power. The Court of Appeal and respondents appeared to consider the compulsory investigation as an end in itself, regardless of the field with which it is concerned. Thus, the Court of Appeal, as respondents did in their factum, seemed to justify the investigation initiated by the C.S.S.T. in constitutional terms by the interest of the province and the C.S.S.T. in provincial railways. Such an interest could only justify a compulsory investigation into provincial, not federal, railways. This is clear from reading Keable 1979, in which Pigeon J. wrote for the majority ap pp. 240-42:

. . . appellants submitted first that there was not constitutional restriction on the possible scope of such an inquiry. It was contended that there was nothing to prevent a provincial governement from ordering, in the public interest, an investigation into any subject whatever, just as any university or private institution can. The short answer to this contention is that this is not an inquiry of the same kind; it is being made, not be resorting only to generally available sources of information, but by complelling the attendance of witnesses to testify under oath and to procduce documents. Such powers are not available to a commission set up by virtue of the royal prerogative, they depend on statutory, in the present case on the Public Inquiry Commission Act under which this Commission was established. A provincial statute cannot be effective beyond the constitional limits of a provincial legislative's authority.

Great stress was laid by the appellants as well as by intervenants on Dickson's J. statement in Di Iorio, at p. 208, that "A provincial commission of inquiry, inquiring into any subject, might submit a report in which it appeared that changes in federal laws would be desirable". This was said obiter in a case concerning an inquiry into organized crime. As previously noted, the basis of the decision was that such an inquiry into criminal activities is within the proper scope of "The Administration of Justice in the Province". The intended meaning of the sentence quoted is not that a provincial commission may validly inquire into any subject, but that any inquiry into a matter within provincial competence may reveal the desirability of changes in federal laws. The commission might therefore, whatever may be the subject into which it appeared that changes in federal laws would be desirable. This does not mean that the gathering of information for the purpose of making such a report may be a proper subject of inquiry by a provincial commission.

The constitutional pivot of the inquiry which was the subject of the dispute in Keable 1979 was the provincial power over the administration of justice. The same is true of the coroner's inquest held in the case at bar: Faber v. The Queen, [1976] 2 S.C.R. 9. The same is also true for the inquiry in question in Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, as Pigeon J. indicated in the foregoing passage.

No one sought to justify the investigation held in the case at bar by the provincial power over the administration of justice.

Respondents' insistence on the fact that inspector Courtois' report contained only recommendations is perhaps also related to this concept of coercion, since allegedly this is not a remedial order with a mandatory effect. This appears to overlook the fact that, first, in Keable 1979 the investigating commissioner could only make recommendations. The coercion lies in the instituting and holding of the investigation itself, and it is this coercion, inter alia, which requires a constitutional justification.

Additionally, I think it is singularly revealing that the conclusions of inspector Courtois' report were in the form of recommendations rather than remedial orders. This approaches an implicit admission that remedial orders similar to these recommendations would have been unconstitutional.

I repeat what I wrote on this point in Bell Canada (at pp. 858-59):

I assume for the purposes of discussion that these recommendations do not conflict with any valid federal regulations, and I do not think it is clear that they impair the operations of the railway. However, it is plain that if these recommendations had taken the madatory form of remedial orders, as authorized by the Act, and as might have been done for a provincial railway, then the vital or essential elements of the undertaking would have been affected. Such provisions would manifestly have been "railway legislation strictly so-called", and as they would have been addressed only to Canadian National and no one else, not only would they be inapplicable, but ultra vires. Indeed, it is likely that it was because such provisions are so obviously unconstitutional that they were described as "recommendations".

I view as errorneous, but also revealing, the argument made by respondents since the trial level, on which the Court of Appeal did not rule, that the investigation itself should be treated separately from the remedial orders, as if the latter were constitutionally more suspect than the investigation. They certainly are more visibly suspect, since they generally tend, as in the case at bar, to dictate to the manager of a federal undertaking how that undertaking is to be administrered or operated, so as to eliminate the dangers and risks of an accident at the source.

They may of course not be any remedial orders, as for example if the investigator is unable to identify the causes of the accident or if the cause was corrected immediately or quickly. However, the actual purpose of the investigation is to identify these causes and to remove them by remedial orders. Although the latter are not inevitable, they nevertheless are the preventive means which the Act contemplates will ordinarily be used.

The trial judge was accordingly correct, in my opinion, in holding that the investigation should not be treated separately from the remedial orders.

Another error made by the Court of Appeal was to assume that if the C.S.S.T. was denied the power to initiate the investigation held by inspector Courtois in this case, this in practice meant denying the provincial authorities all powers of investigation.

I have already mentioned that a coroner held an inquest into the death of appellant's three employees killed in the railway collision.

The Court of Appeal was concerned by the need for a power to investigate for the purposes of the Workmen's Compensation Act. First, it should be noted that the investigation in the case at bar was not initiated for the purposes of the Workmen's Compensation Act. The summonses issued by inspector Courtois referred to ss. 62, 178 and 180 of the Act. Second, section 91 of the Workmen's Compensation Act gives the Commission des accidents du travail the power to examine the books, documents, files and accounts of any employer and "to make such other inquiry as the Commission may consider expedient for the purpose of making any verification necessary for the application of the acts administered by it. . . ." In the case at bar the Court does not have to rule on the powers conferred on agencies by statutes other than the Act. The same is true for the powers to investigate water pollution, referred to by the Court of Appeal.

Finally, I find in the reasons of the Court of Appeal an error that is perhaps less serious than the precedings ones, but whcih is better not to be overlooked. The Court of Appeal wrote, as an illustration, that

[translation] . . . while the result of the investigation could lead to recommendations regarding a piece of equipement, it could not, for instance, relate to respondent's railway signal mechanism.

I agree with the Court of Appeal as regards the railway signal mechanism, but note that the recommendations of inspector Courtois were concerned in part with precisely this matter. I also greatly doubt that a provincial authority can tell a federal railway undertaking what pieces of equipment it must or must not use.

VII‑‑ Conclusions

To the main consitutional question I would answer that ss. 62 and 177 to 193 of the Act respecting occupational health and safety sont inapplicables en tout à une entreprise ferroviaire interprovinciale, dont les ouvrages de chemin de fer ont été déclarés être à l'avantage général du Canada.

In view of the previous answer, it is not necessary to answer the question of whether these sections are inoperative.

I would decline to answer subquestions (1) and (2) and would answer each of subquestions (3)(a), (b) and (c) in the negative.

I would allow the appeal, dismiss the crossappeal, reverse the judgment of the Court of Appeal and restore the judgment of the Superior Court.

The whole with costs throughout. No costs will be awarded, however, for or against the mis en cause.

Appeal allowed and cross-appeal dismissed with costs.

Solicitors for the appellant: Giard, Gagnon, Montréal.

Solicitors for the respondents: Dallaire, Joly-Ryan, Lafontaine & Associés, Longueuil.

Solicitor for the mis en cause the Attorney General of Quebec: Réal A. Forest, Ste-Foy.

Solicitor for the mis en cause the Attorney General of Canada: Gaspard Côté, Montréal.

• Chouinard J. took no part in the judgment.