2017 OHSTC 12

Date: 2017-07-06

Case No.: 2017-14

Between:

Mike Merry, Applicant

and

Sterling Fuels, Respondent

Indexed as: Merry v. Sterling Fuels

Matter: Request for an extension of time to file an appeal under subsection 129(7) of the Canada Labour Code

Decision: The request is granted.

Decision rendered by: Ms. Marie-Claude Turgeon, Appeals Officer

Language of decision: English

For the applicant: Himself

For the respondent: Mr. Gene Tomory, Facility Manager, Sterling Fuels Limited (The Respondent did not participate in the present Application)

Citation: 2017 OHSTC 12

Reasons

[1] This matter concerns a request for an extension of time to file an appeal pursuant to subsection 129(7) of the Canada Labour Code (the Code). The applicant, Mr. Mike Merry, is also acting as spokesperson for eight other employees in this appeal. He is requesting to be relieved of his failure to file an appeal of a decision that a danger does not exist rendered on April 25, 2017, by Ms. Leah J. Quiring, an Official Delegated by the Minister of Labour (Ministerial Delegate), within the 10-day statutory time limit set out in the Code.

Background

[2] On April 5, 2017, Mr. Merry, Marine Refueller, as well as Union Chairperson and Safety Representative for all unionized employees at Sterling Fuels (the employer), exercised his right under section 128 of the Code to refuse to work on the grounds that a condition in his work place constituted a danger to him. Eight other employees, Jani Gusevski, William Renaud, Adam David, Thomas Clark, Adam LaPorte, Tyler Thibert, Dave Pearson and Andrew Pastorius, also refused to work at various times after April 7, 2017, for similar reasons. Mr. Merry acts as their spokesperson in this group refusal both with respect to the refusal itself and the appeal. The work place involved is located at 3665 Russell St., Windsor, Ontario.

[3] According to the information stated in Ministerial Delegate Quiring’s report, Mr. Merry’s refusal to work is for the following reasons: 1) no rescue boat; 2) no rescue plan; 3) no shower at the north deck; 4) south dock shower does not meet the run time; 5) no fire contingency plan; 6) no immersion suit; and 7) no training for all items in place outlined in 1) to 6). The primary reason for his refusal had to do with the risk of falling in the water and drowning. He was concerned that of all of the resources available along the Detroit River to perform a rescue, the risk of drowning still constituted a danger. No employees were engaged in dock duties at the time of refusal.

[4] On Monday, April 24, 2017, Ministerial Delegate Quiring, who is also a Senior Marine Safety Inspector - Transport Canada, attended the work place to conduct her investigation into the employees’ work refusal.

[5] On April 25, 2017, Ministerial Delegate Quiring issued her decision pursuant to subsection 129(4) of the Code that no danger existed and notified the employer and one of the refusing employees, Mr. Mike Merry, by a letter dated April 25, 2017.

[6] According to a handwritten note on the letter dated April 25, 2017, and other documents on file, the decision was hand-delivered by the Ministerial Delegate at the employer’s site on April 26, 2017, to the employer’s representative, Mr. Gene Tomory, as well as to four of the nine refusing employees, including Mr. Merry.

[7] There are also handwritten notes and Canada Post Corporation documents on file indicating that the letter was mailed by registered domestic mail in Sarnia on April 26, 2017, to the remaining five employees to whom the decision had not been hand-delivered, with individual delivery confirmation dates between April 27 and April 29,, 2017.

[8] It can be derived from the above that four employees received notice of the decision on April 26, 2017, while the remaining five employees received it between April 27 and April 29, 2017.

[9] The Occupational Health and Safety Tribunal Canada (Tribunal) received Mr. Merry’s Application to Appeal Form (which is dated Thursday, May 4, 2017) by fax on Tuesday, May 9, 2017, one day after the expiry of the 10-day time limit set out in the Code for employees who received notice of the decision on April 26, 2017, but within the statutory limit set out in subsection 129(7) of the Code for those who received it between April 27 and April 29, 2017.

[10] By a letter dated May 11, 2017, sent via e-mail, the Registrar of the Tribunal informed Mr. Merry that his application for an appeal appeared to be beyond the 10-day statutory time-limit set out in subsection 129(7) of the Code. Mr. Merry was also given until May 23, 2017, to provide his written submissions should he believe that he has sufficient grounds to request an extension of time for instituting the appeal.

Issue

[11] The question that I must address is whether I should, in the present matter, exercise the discretion conferred upon me by paragraph 146.2(f) of the Code to extend the time limit of 10 days set out in subsection 129(7) of the Code.

Applicant’s submissions

[12] On May 23, 2017, Mr. Merry provided short submissions by e-mail in support of his request to be relieved from his failure to file the appeal within the prescribed time limit. He essentially argues that the extension should be granted based on the fact that the appeal was mailed in a manner that should have arrived to the Tribunal within the 10-day limit. Mr. Merry adds the only reason the appeal form document was faxed on May 9, 2017, is because he was concerned since the Tribunal had not acknowledged receipt of his application. Finally, despite the date of the decision being April 25, 2017, it was only issued in person on April 26, 2017, with no report or further information presented until May 12, 2017.

[13] Mr. Merry concludes by saying that the severity of the issue here warrants the ability for appeal.

[14] The respondent did not provide any submissions.

Analysis

[15] Mr. Merry’s Application to Appeal Form is dated May 4, 2017. It was sent by regular mail. For reasons that are unknown, the Tribunal only received the Application to Appeal Form by regular mail on May 17, 2017. In the meantime, however, Mr. Merry faxed a copy of the form to the Tribunal on May 9, 2017. Having no evidence that Mr. Merry’s Application to Appeal was mailed before May 9th, this is the date on which the Tribunal received Mr. Merry’s application for the purposes of subsection 129(7) of the Code.

[16] The question that I must address now is whether I should exercise my discretion in favour of extending the time limit for filing the appeal and relieve Mr. Merry of his failure to file the appeal within the prescribed time limit. Pursuant to paragraph 146.2(f) of the Code, an appeals officer is empowered to extend the prescribed time limit for initiating an appeal. This paragraph reads as follows:

• 146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may
• […]
• (f) abridge or extend the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence;

[17] The Code does not prescribe the factors that an appeals officer ought to consider when exercising his discretionary powers to extend time limits.

[18] When exercising their discretion to extend the time limits, appeals officers consider a number of factors as described by Appeals Officer Pierre Hamel in Alex Hoffman v. Canada (Border Services Agency), 2013 OHSTC 19:

• [25] The Code does not prescribe factors that an appeals officer ought to consider in exercising the power to extend time limits. Such discretion must be exercised judicially, in a non-arbitrary or discriminatory manner, must be based on relevant legal principles, and be anchored in considerations that support the interest of fairness and serve the purpose and objectives of the Code. […] Administrative tribunals and appeals officers alike, have typically considered and weighed the following factors in the exercise of their discretion: the length of the delay in relation to the appeal period, the explanations of the party to account for the delay, the due diligence shown through that party’s actions, and the prejudice suffered by the other party (ies) to the proceedings.

[19] At this point, it appears important to reiterate that while Mr. Merry’s application was received one day beyond the time limit (and this would also be the case for the applications of the three other employees who received notice of the Ministerial Delegate’s decision on April 26, 2017), five other employees only received notice of the decision between April 27 and April 29, 2017, which means that they would therefore be within the prescribed time limit by having filed an appeal on May 9, 2017.

[20] In the interest of fairness and taking into consideration the short delay involved, Mr. Merry’s manifest and continued intention to appeal the decision at issue as shown by his fax on May 9, 2017, as well as the circumstances described in the above paragraph and the absence of prejudice to the employer, I have decided to exercise the discretion conferred upon me by paragraph 146.2(f) to grant the applicant’s request for an extension of time to file the appeal. This is also in line with the principle of a fair, large and liberal construction and interpretation set out in section 12 of the Interpretation Act.

Decision

[21] The request for an extension of time to file the appeal is granted.

Marie-Claude Turgeon

Appeals Officer