2013 OHSTC 33

Citation: Canadian Broadcasting Corporation v. Syndicat des technicien(ne)s et artisan(e)s du réseau français de Radio-Canada, 2013 OHSTC 33

 Date: 2013-11-18

 Case No.: 2013-52

 Rendered at: Ottawa

 Between:

Canadian Broadcasting Corporation, Appellant

-and-

Syndicat des technicien(ne)s et artisan(e)s du réseau français de Radio-Canada, Respondent

 Matter: An application for a stay of a direction.

 Decision: The stay of the direction is denied.

 Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

 Language of decision: French

 For the Appellant: Ms. Maryse Tremblay, Legal Counsel, Heenan Blaikie LLP

 For the Respondent: Mr. Réal Leboeuf, Union Counsel, Canadian Union of Public Employees

REASONS

[1] This concerns an appeal brought by the Canadian Broadcasting Corporation ("CBC") on October 4, 2013 under subsection 146(1) of the Canada Labour Code ("the Code") of a direction issued by Health and Safety Officer (HSO) Mario Thibault on September 30, 2013. The direction in question was issued pursuant to paragraph 141(1)(h) of the Code, which confers on a health and safety officer in the performance of his duties, the authority to order an employer to produce documents and information relating to the health and safety of the employer's employees or the safety of the work place and to permit the officer to examine and make copies of or take extracts from those documents and that information. This direction was therefore not intended to be a direction issued pursuant to section 145 of the Code concerning a dangerous situation or contravention identified by HSO Thibault but instead targeted the appellant's failure to comply with a request made by the HSO, in the performance of his duties, to provide him with certain documents.

[2] The aforementioned appeal of the CBC consists of an application for a stay of execution of the direction until an appeals officer hears the matter raised by the appeal and issues a decision on its merits.

Background

[3] Ms. Francine-Kim Turgeon worked as a make-up artist at CBC until her dismissal on May 9. As a CBC employee, Ms. Turgeon was a member of the respondent union. Prior to her dismissal, i.e. on April 2, 2013, Ms. Turgeon had filed a complaint alleging work place violence within the meaning of Part XX of the Occupational Health and Safety Regulations ("the Regulations"), which complaint was forwarded to HSO Thibault on that same date. As part of the complaint investigation process launched by appellant CBC in accordance with such Regulations, the latter tasked an independent third party (Hélène Gaudet Chandler) to conduct an investigation into Ms. Turgeon's allegations.

[4] It seems that just as investigator Gaudet Chandler had completed her investigation and was drafting her report, HSO Thibault informed the appellant that he planned to meet with certain individuals, including Ms. Gaudet Chandler, in order to obtain answers to certain questions concerning the handling of the work place violence complaint filed by Ms. Turgeon. This meeting took place on June 26, 2013, after which HSO Thibault sent an email on June 27, 2013 to the appellant's representatives stating that during his meeting(s), he did not find that the Code had been violated and that he had "instead sensed the employer's concern for impartiality in keeping with the Regulations' investigation guidelines." The findings of the investigation concerning Ms. Turgeon's complaint were sent to him by letter, dated July 11, 2013, along with a copy of extracts from investigator Gaudet Chandler's report. On September 6, 2013, or almost two months later, HSO Thibault wrote to the appellant asking for the full report prepared by investigator Gaudet Chandler. According to HSO Thibeault, who testified during the hearing of this appeal, after he informed the appellant of his conclusions concerning the impartiality of the investigation conducted by Ms. Gaudet Chandler, he became aware of CBC's guidelines for this type of investigation, which raised certain questions about the impartiality of the investigation, questions to which he hoped to find the answers by reading the entire investigation report. Hence the reason for his request. Given that the appellant failed to comply with his request, on September 30, 2013, HSO Thibault issued the direction currently under appeal.

[5] The direction reads in part as follows:

 [Translation] On June 26, 2013, the undersigned health and safety officer conducted an investigation concerning the impartiality of Ms. Hélène Gaudet-Chandler, the competent person appointed by Ms. Colette Francoeur, Director, Human Resources and Labour Relations, to investigate the work place violence allegations made by former Canadian Broadcasting Corporation (CBC) employee Francine Kim Turgeon […].

Moreover, the purpose of the direction was to provide HSO Thibault with the document described as follows:

 [Translation] The original investigation report prepared by Ms. Hélène Gaudet-Chandler, following her investigation of the work place violence allegations made by former CBC employee Francine Kim Turgeon.

[6] It seems from the notice of appeal and the stay application that Ms. Turgeon filed 15 grievances against the appellant concerning her dismissal and the disciplinary notices she received before her dismissal. She also filed a complaint with the Canada Industrial Relations Board under section 133 of the Code, alleging she had been subjected to reprisals. All these proceedings are currently pending before other bodies.

[7] On October 16, 2013, I held a telephone conference hearing of the stay application in which HSO Thibault participated along with Mr. Réal Leboeuf, union representative acting on behalf of the respondent and Ms. Maryse Tremblay, counsel for the appellant, who was accompanied by Ms. Linda Facchin, CBC's director of legal affairs, and Mr. Jean-François Robillard, CBC's health and safety coordinator. At the end of the telephone conference, I immediately rendered my decision to deny the application for a stay of execution of the direction. The reasons for this decision are set out below.

[8] Subsection 146(2) of the Code clearly stipulates that an appeal of a direction does not operate as a stay of the direction. However, this same provision confers on the appeals officer the authority to stay a direction on application by the employer, employee or trade union involved in the matter. The examination of such an application by the appeals officer requires the party requesting the stay to demonstrate the following to the appeals officer's satisfaction:

- The applicant must satisfy the appeals officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim;

- The applicant must demonstrate that he would suffer significant harm if the direction is not stayed;

- The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

Is the question to be tried serious as opposed to frivolous or vexatious?

[9] The appellant bases its argument on this particular point on the fact that HSO Thibault had initially issued a conclusion stating that the investigation procedure put in place by the appellant to consider the work place violence claims made by Ms. Turgeon was impartial, which met the requirements of subsection 20.9 of the Regulations concerning the appointment of a "competent" person. He had therefore exhausted his authority in this regard, was functus officio, and could not revisit the matter, or try to do so, especially at a much later date, by requiring that the entire report drafted by the competent person, who is by definitiion impartial, be made available to him and that under the Regulations had to be submitted to the employer and sent to the work place committee or representative provided the disclosure "would not reveal the identity of persons involved without their consent." The direction issued by HSO Thibault was therefore devoid of a legitimate and reasonable purpose and hence, void ab initio.

[10] The appellant also advances an argument on this first point that seems to deal more with the harm it may suffer if the stay were denied. According to the appellant, given the numerous pending proceedings between Ms. Turgeon and the CBC and the fact that several individuals participated in Ms. Gaudet Chandler's investigation on the condition that their identities not be disclosed, providing HSO Thibault with the full report would have an adverse effect on said pending proceedings, compromise the defence of the CBC's interests and have the detrimental effect of making it more difficult for the appellant to convince its employees to fully participate in the work place violence investigation process if their identity could be disclosed.

[11] The respondent's representative challenges the position taken by the appellant, arguing that even if the HSO had initially examined the allegations of partiality before the investigation was completed, he never had the opportunity to read such report and hence determine whether the investigation had in fact been properly conducted. In the representative's view, there are ways to protect the identity of the participants in the investigation without preventing transmission of the report. Moreover, since both the CBC's policy and the Regulations state the report may be provided to the work place committee, under section 141 of the Code, the agent has the authority to request a copy of such report, and this authority has not been exhausted.

[12] Concerning this first question, the hearing of the appeal will at the very least require an examination of whether the HSO had the authority to act in the manner that he did and hence to consider whether he was functus officio, and especially, in my view, an examination of whether this notion applies to the officer's exercise of his general authority to collect information as part of the performance of his duties. This question does not concern the contents or disclosure of the report because such disclosure would only be made to the HSO to allow him to perform his duties. This is a serious question as opposed to a frivolous or vexatious claim.

Will the appellant suffer significant harm if the direction is not stayed?

[13] The appellant considers it will suffer serious and irreparable harm if the stay of the direction is denied. I already alluded above to the reasons invoked by the appellant concerning this question. Its position revolves around defending its interests in other pending proceedings and the difficulties it could encounter when conducting work place violence investigations in the future due to the reluctance of employees to participate in such investigations for fear that their testimonies and identities could be disclosed. In this regard, the appellant wishes to maintain its discretion to adduce in evidence the information contained in the Gaudet Chandler report in these other proceedings. The appellant argues that denying its application would entail nothing less than rendering its appeal theoretical.

[14] For its part, the respondent argues that, in any event, the report would have to be produced in any grievance arbitration case and that therefore its contents would eventually be disclosed. Consequently, there are no grounds for finding that the appellant will suffer harm.

[15] I find denying the stay of the direction would not cause material harm to the appellant, for the reasons outlined below. First, the HSO, who was present during the hearing of this application, formally agreed to use the report for his own information only and therefore not to send a copy or disclose its content to anyone else. It is true, as the HSO said, that a request for access to information could require its contents to be disclosed. However, under the Code, there are many ways to protect information that should not be disclosed, including identities. Second, I do not share the appellant's opinion that its appeal would be rendered theoretical if I deny its application. In my view, the question raised by this appeal, as I stated earlier, goes well beyond the scope of the information in the Gaudet Chandler report and its transmission since the appeal would first have to consider the HSO's authority to act, in other words, examine the question of whether he was functus officio and to determine whether this notion applies in the circumstances of this case. Third, regardless of the fact that the pending proceedings in which the appellant is involved fall under other jurisdictions, I agree with the respondent's representative, who argued that this report will likely be filed with these other bodies.

What measures will be put in place to protect the health and safety of employees or any persons granted access to the work place should the stay be granted?

[16] In light of my finding regarding the second question concerning the harm the applicant may suffer if its application is denied, there is no need to consider this third question.

Decision

[17] For the reasons set out above, the application for a stay of the direction issued by HSO Thibault on September 30, 2013, in respect of Canadian Broadcasting Corporation is denied.

Jean-Pierre Aubre
Appeals Officer