2017 OHSTC 16

Date: 2017-08-22

File No.: 2017-20

Between:

Canada Post Corporation, Applicant (Appellant in the appeal)

and

Canadian Union of Postal Workers, Respondent

and

Brad King, Respondent

Indexed as: Canada Post Corporation v. Canadian Union of Postal Workers and King

Matter: Application for a stay of a direction issued by an Official Delegated by the Minister of Labour

Decision: The application for a stay is denied

Decision rendered by: Pierre Hamel, Appeals Officer

Language of the decision: English

For the applicant: Mr. Daniel W. Ingersoll, Q.C., Legal Counsel and Mr. James B. Green, Legal Counsel, Cox & Palmer

For the respondents: Mr. Christopher Perri, Legal Counsel, Cavalluzzo Shilton McIntyre Cornish LLP

Citation: 2017 OHSTC 16

Reasons

[1] These reasons concern an application brought under subsection 146(2) of the Canada Labour Code (the Code) for a stay of a direction issued on May 29, 2017 by Ms. Deborah Gillis-Williams, in her capacity as Official Delegated by the Minister of Labour (Ministerial Delegate).

[2] The direction was issued against the Canada Post Corporation (“Canada Post” or “the employer”) pursuant to subsection 145(1) of the Code and reads as follows:

In the matter of the Canada Labour Code Part II - Occupational Health And Safety

Direction to the employer under subsection 145(1)

On May 29, 2017, the undersigned Official Delegated by the Minister of Labour conducted an investigation in the work place operated by Canada Post Corporation, being an employer subject to the Canada Labour Code, Part II, at 6135 Almon Street, Letter Carrier Depot # 1, Halifax, Nova Scotia, B3K 2V0, the said work place being sometimes known as Canada Post - Letter Carrier Depot # 1.

The said Official Delegated by the Minister of Labour is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened;

No / No : 1

Paragraph 125.(1)(z.16) - Canada Labour Code Part II, Subsection 20.9(3) - Occupational Health and Safety Regulations

The employer has failed to appoint a competent person, who is impartial and seen to be impartial by the parties involved, to investigate the allegation of work place violence.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than June 13, 2017.

Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time specified by the Official Delegated by the Minister of Labour, to take steps to ensure that the contravention does not continue or reoccur.

Issued at Halifax, this 29th day of May, 2017.

(s) Deborah Gillis-Williams

. . .

[3] The employer has appealed the direction pursuant to subsection 146(1) and filed its Application to appeal with the Tribunal on June 15, 2017. The employer’s application included a request that the direction be stayed pending resolution of the appeal.

[4] The request for a stay was heard by way of teleconference. The teleconference took place on July 6, 2017. On July 5, 2017, the applicant filed written submissions supported by affidavit evidence and authorities, in support of its application.

[5] Counsel for the parties made oral submissions at the teleconference. Because the respondents only obtained the applicant’s material shortly before the teleconference, I gave the respondents the opportunity to file written submissions and reply affidavit evidence, as necessary. The respondents’ submissions and affidavit evidence were filed with the Tribunal on July 14, 2017 and the applicant’s reply submissions were filed on July 21, 2017.

[6] On July 28, 2017, the parties were advised of my decision to deny the application for a stay. I hereby set out the reasons for my decision.

Background

[7] A brief summary of the circumstances that led to the issuance of the direction will be helpful in better understanding the issues raised by the present application.

[8] Mr. Brad King, one of the respondents, is a letter carrier employed by Canada Post at the Letter Carrier Depot #1 located at 6135 Almon St., in Halifax, Nova Scotia. Mr. King is represented by the Canadian Union of Postal Workers (CUPW), who is a national union certified to bargain on behalf of letter carriers employed by Canada Post. The CUPW represents Mr. King in the present proceedings.

[9] On February 18, 2016, Mr. King submitted a written complaint to Canada Post raising allegations of violence in the workplace. The employer inquired into the complaint and came to the conclusion that Mr. King’s complaint was without merit.

[10] As Mr. King’s allegations of violence had not been resolved, Canada Post appointed Mr. Greg Stienke, a Canada Post Health and Safety Manager from Mississauga, Ontario, to conduct a “second-level” investigation into the complaint and to provide recommendations to address the issues of workplace violence, if any, found during his investigation. Mr. Stienke was purportedly appointed as a “competent person” pursuant to subsection 20.9(3) of the Canada Occupational Health and Safety Regulations (Regulations).

[11] Mr. Stienke issued his investigation report on November 16, 2016. Following receipt of the report, Canada Post accepted its findings and took steps to implement its recommendations.

[12] Following the release of Mr. Stienke’s report, Mr. King and CUPW filed a complaint to the Minister of Labour alleging that Canada Post had failed to appoint a “competent person” to conduct the investigation, on the grounds that Mr. Stienke was not impartial. On or about March 30, 2017 Canada Post received an Assurance of Voluntary Compliance ("AVC") issued by Ms. Deborah Gillis-Williams, alleging that Canada Post had failed to appoint a "competent person" to investigate Mr. King’s complaint, in contravention of subsection 20.9(3) of the Regulations. Eventually, on May 29, 2017, she issued the direction which is the subject of the present application.

[13] The substantive issue raised by the appeal thus turns on whether Mr. Stienke was “impartial and seen by the parties to be impartial” within the meaning of paragraph 20.9(1)(a) of the Regulations. The employer contends that Mr. Stienke appears on a list of “competent persons” agreed upon by the employer and CUPW (at the National Joint Health and Safety Committee), that he was impartial and that Mr. King and his union representative never challenged Mr. Stienke’s impartiality until the report was issued and the recommendations implemented. The CUPW argues the contrary position, pointing out that Mr. Stienke was not impartial and concerns were raised about his impartiality before and during his investigation.

Analysis

[14] The authority of an appeals officer to grant a stay of a direction is found in subsection 146(2) of the Code:

146 (2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.

[15] Appeals officers have considerable discretion in determining whether a stay should be granted. Such discretion must be exercised in a way that supports the objectives of the Code and largely depends of the context in which the direction is issued and its impact on the employer’s operations. As such, each case turns on its own set of facts. The Tribunal’s jurisprudence has set out a test comprising various factors that appeals officers should consider in dealing with an application for a stay; those factors serve as the appropriate analytical framework for appeals officers to apply their discretion in each case: see S.G.T. 2000 Inc. v. Teamsters Quebec, local 106, 2012 OHSTC 15, at para. 5. Originally derived from the Supreme Court of Canada decision in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (Metropolitan Stores), the test has been applied in a manner that furthers the objectives of the Code. The elements of the test are as follows:

1. the applicant must satisfy the appeals officer that the question to be tried

is serious as opposed to frivolous or vexatious;

2. the applicant must demonstrate that it would suffer significant

harm if the direction is not stayed by the appeals officer; and

3. 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.

[16] I will consider in turn each of these criteria, as required.

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

[17] Regarding this first element of the test, there is no dispute between the parties that the appeal raises a serious issue to be tried. I share this view.

[18] The interpretation of section 20.9 of the Regulations has been the subject of a number of appeals officers and Court decisions. In Canada (Attorney General) v. Public Service Alliance of Canada, 2015 FCA 273, the Court expressed the view that those provisions are not “a model of legislative drafting” and gave rise to many questions of interpretation. In Maritime Employers Association v. Longshoremen’s Union, CUPE, Local 375, 2016 OHSTC 14 (Maritime Employers Association), the issue turned around the concept of the words “and seen by the parties to be impartial” and whether the complainant’s claim that the “competent person” appointed by the employer was not impartial had to be demonstrated objectively.

[19] The present appeal may raise questions such as whether persons otherwise employed by the employer may act as a “competent person”, the manner in which and the point in time at which an objection to the competent person’s impartiality must be voiced, the finality of the process contemplated by section 20.9 of the Regulations and so forth.

[20] The threshold to meet the first element of the test is fairly low and I am satisfied that the appeal raises genuine issues for the parties, and is neither futile, frivolous or vexatious (see: Employment and Social Development Canada v. Longval, 2014 OHSTC 12 (Longval); Via Rail Canada Inc. v. Unifor, 2014 OHSTC 5 (Via Rail Canada)).

[21] I therefore conclude that the applicant has satisfied the first element of the test.

Would the applicant suffer significant harm if the direction is not stayed?

[22] The second element of the test is often the most difficult to satisfy for an applicant. I will briefly summarize the parties’ submissions that address this criterion.

Applicant’s submissions

[23] Counsel for the applicant stresses that respondent King did not raise an issue with respect to Mr. Stienke’s impartiality at the outset of the investigation and fully participated in the investigation as it progressed. The respondent’s challenge on the basis of lack of impartiality only occurred well after the investigation was completed and the recommendations implemented. The applicant concludes that, as a result, the effect of the direction is wide-ranging and other completed investigations would likewise be open to challenge.

[24] Canada Post submits that the loss of any expectation of finality in the workplace investigation process would be of significant harm, given the number of such investigations conducted each year. If Canada Post is required to retain new external investigators to re-investigate old complaints, the investigation process will become administratively burdensome and excessively expensive and time consuming.

[25] Canada Post has invested considerable time, effort, and money developing its Workplace Violence Prevention Policy and training investigators to conduct workplace investigations. The Policy was reviewed by the four National Joint Health and Safety Committees prior to its implementation in 2013. All of this investment over the last nearly four years may be placed in a state of considerable uncertainty if the direction is not stayed.

[26] As a result, Canada Post submits that the direction has a broad impact across the employer’s operations and cites Brink's Canada Ltd. v. Childs and Unifor, 2017 OHSTC 4, Brink’s Canada Ltd. v. Robert Dendura, 2016 OHSTC 18 and Bell Mobility Inc., 2012 OHSTC 4, as precedents for granting the stay in the present case.

[27] Counsel for the employer further submits that the appointment of a new investigator creates the risk for considerable confusion: would Mr. Stienke’s recommendations be nullified? What if the recommendations of the new investigator conflict with Mr. Stienke’s recommendations? Which recommendations would Canada Post be required to implement? Such confusion could easily multiply across the country, which would cause the employer significant harm.

Respondents’ submissions

[28] The Respondents take the position that the applicant has not shown that the harm it will suffer is sufficient to meet the requirements of the second part of the Tribunal’s test for granting a stay.

[29] Firstly, counsel for the respondents dispute Canada Post’s claim that Mr. Stienke’s impartiality was not challenged prior to or during the investigation, as demonstrated by various email exchanges introduced by way of affidavit evidence.

[30] Secondly, the respondents submit that the direction is narrow in its scope. Nothing in the direction indicates that Canada Post must rework its entire Workplace Violence Prevention Program. Nor does the direction state that none of the persons on the list of investigators are “competent persons” for the purpose of the Code. And there is no express or implied suggestion that Canada Post needs to go back and redo all prior investigations. The respondents point out that the affidavit evidence of the employer itself shows that it only appoints approximately ten investigators per year, and as such, it would not be onerous for the employer to avoid using Mr. Stienke as an investigator pending the appeal.

[31] Thirdly, the respondents submit that the concerns raised by the employer around past and ongoing implementation of the recommendations from Mr. Stienke’s report are not onerous and resemble “best practices” that Canada Post should follow in any event. As such, they do not establish significant harm. Furthermore, the recommendations and the extent to which they have been implemented can properly be taken into consideration by any new investigator.

[32] As to the possibility of conflicting decisions or recommendations, the respondents submit that such an outcome must have been contemplated by Parliament when the Code was enacted, as stated in the Longval decision.

Applicant’s reply

[33] In reply, the applicant urges me to disregard the respondent’s submissions regarding their alleged objection to Mr. Stienke’s appointment as a competent investigator. The applicant argues that the evidence advanced by the respondents does not establish that an objection was raised to Mr. Stienke’s appointment.

[34] The applicant reiterates that it would suffer serious harm if it is required to undertake a further investigation of Mr. King’s complaint. The direction to conduct a second investigation pre-judges the issue and renders moot any reply that Canada Post may advance to the appeal. The applicant contends that any Canada Post employee who is dissatisfied with the results of an investigation could rely on the present direction and seek the appointment of another competent person, even if the employee had agreed to the original appointment.

[35] Counsel for the applicant reiterates that the direction appears to be based in part on the fact that no employee from Canada Post could act as a “competent person”. If so, the scope of the direction is clearly broader than the respondents suggest, as the names of persons employed with Canada Post appear on the list.

[36] The applicant rejects the respondents’ submission that a newly appointed investigator could review Mr. Stienke’s report before launching his/her investigation, as this manner of proceeding would simply render the work and report of a new investigator vulnerable to the same allegation of bias.

[37] Finally, Longval is distinguishable on the basis that no “competent person” had been appointed in that case, let alone recommendations having been made and implemented, and the potential for conflicting decisions was not between two competent investigators, but rather between the “competent person” and the appeals officer.

Decision on the second criterion

[38] As I stated earlier, my discretion to grant a stay must be exercised in a way that supports the purpose of the Code and is respectful of its fundamental structure. Subsection 146(2) is drafted in a way that leaves no doubt as to the intent of Parliament to ensure that directions issued by the Minister (or his delegates) shall be complied with, in spite of an appeal having been filed. In doing so, it must be assumed that Parliament was cognizant of the fact that it was quite possible that a favourable decision on the merits of the appeal would, in retrospect, render unnecessary the corrective measures taken in compliance of the direction.

[39] Exceptionally, such presumptive rule may be ousted in situations where a party, usually the employer, can establish serious harm resulting from such compliance. Accordingly, the seriousness of the harm and the appropriateness of a stay largely depend on the scope of the Minister’s order, the magnitude or nature of the measures that must be undertaken by the employer to comply with the direction and its impact on the employer’s operations.

[40] With respect, I have not been persuaded by the applicant’s arguments that it would suffer significant harm and that a stay of the direction is appropriate in the present case.

[41] Firstly, I am of the view that much of the employer’s submissions are premised on an application of the direction that goes beyond its real scope (the “macro” effect, as argued by the employer in its oral submissions). I consider that the scope of the direction to be very narrow and to relate solely to the allegations of violence that led to the complaint being made to the Minister. The recommendations are focussed on the facts of Mr. King’s allegations and, in my view, do not have the systemic implications that underlie the employer’s concerns.

[42] The employer places much emphasis on the implications of allowing the direction to stand, both in terms of future cases involving s. 20.9 of the Regulations, as well as ongoing cases and the finality of cases that have already been dealt with under this provision. The employer’s submissions are premised on possible wide-range implications of the direction on Canada Post nationally and the inference that it possibly compromises the validity of the employer’s Violence Prevention Program and the validity of the list of “competent persons” developed for the purpose of that Program.

[43] The direction itself and the measures required to comply with it are far from having such a far-reaching result. For example, the Ministerial Delegate does not declare the employer’s Violence Prevention Program or the list of “competent persons” to be in violation with the Code, nor does it otherwise address past investigations or give direction with regard to future cases arising under s. 20.9, let alone order the employer to redo previous investigations. It addresses one case with its specific set of facts and in no way purports to require the employer to generally, across the system, modify its modus operandi in dealing with its obligations under section 20.9 of the Regulations. Its effect is limited to Mr. King’s allegations, no more, no less and requires the employer to appoint another person who is seen by the parties to be impartial and otherwise meets the other qualifications required by subsection 20.9(1), to investigate Mr. King’s allegations. As such, the direction does not prevent the employer from appointing another investigator from the list, who would be accepted by the parties involved as being impartial (Maritime Employers Association).This is not, in and of itself, a very cumbersome obligation and does not cause harm, let alone significant harm, to the employer.

[44] It may be that in order to reach her conclusion that the employer had, in appointing Mr. Stienke, not appointed a “competent person”, that the Ministerial Delegate made findings implying that she preferred the respondents’ version of facts over the employer’s, or accepted that a competent person’s impartiality could be raised at any point in time during the investigative process, or even after the report is issued. Those issues and the interpretation to be placed on subsection 20.9(1) in light of those questions will be determined upon a de novo examination of the facts on the merits of the appeal.

[45] However, under the second criterion, the focus must be on determining the harm that the employer will suffer as a result of the strict compliance with the direction. In doing so, the direction should be presumed to be valid and it is the immediate result in complying with it that must be considered, rather than possible legal implications of the direction more generally, as the employer argues. In other words, the discussion on the employer’s concerns is more relevant to the consequences of the direction being confirmed on its merits, than the harm the employer would suffer by complying with it in the immediate.

[46] The employer cites the decision issued in Brink’s Canada Ltd. v. Childs and Unifor in support of the stay and argues that the direction has a broad impact across the employer’s operations. I do not agree that the Brink’s case has any application to the present matter. In that case, the direction directly addressed a “2-person crew” delivery method for cash-in-transit operations applied by the employer across Canada and ordered the employer to cease using such method on the basis that it exposed the employees to a danger. It is clear that for the company to comply with the direction in that case would have meant discontinuing the 2-person crew delivery method and reverting back to a 3-person crew, for the employer’s operations nationally, resulting in significant resource implications, fundamental alteration of its business and critical competitive disadvantages to the company. Those factors were found to constitute significant harm to the employer, as the direction directly struck at the heart of the employer’s operations.

[47] The employer’s goal underlying this argument for obtaining a stay is to avoid the situation where the direction would be used as precedent for other cases. In my view, a stay would not achieve that purpose. The legal effect of the stay is to relieve the employer from the obligation to comply with the direction and avoid prosecution proceedings. It does not nullify the direction which, once issued, is presumed valid until rescinded by an appeals officer, as the case may be. In any event, the direction and the corrective measure required to comply with it do not go beyond Mr. King’s complaint.

[48] Secondly, it is understood that the concerns expressed by the employer are premised on facts that are disputed by the respondents, namely whether Mr. King and his union steward objected to Mr. Stienke’s appointment or otherwise raised concerns regarding his impartiality. It is not appropriate, and quite frankly not realistic, to resolve the discrepancy in the parties’ presentation of the facts at this preliminary juncture, without the benefit of first hand viva voce evidence and an assessment of credibility that the hearing of the merits of the appeal will afford.

[49] The applicant’s submissions involve, in my view, consideration of the merits of the case, which is not appropriate at the present stage of the proceedings. As the Court pointed out in Metropolitan Stores, at page 130:

The limited role of a court at the interlocutory stage was well described by Lord Diplock in the American Cyanamid case, supra, at p. 510:

It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.

[50] Thirdly, the employer raises the risk of conflicting conclusions/recommendations if another person investigates the same allegations. This may be so, but this concern is, at this point entirely speculative. Furthermore, it would be expected that a newly appointed “competent person” would apply a pragmatic approach to his/her mandate to investigate the allegations. In my opinion and as counsel for CUPW suggests, it would not be inappropriate for that person to take cognizance of the material that has already been generated as a result of Mr. Stienke’s investigation, including the recommendations already implemented by the employer, in order to gain an understanding of the allegations and of the issues in dispute, assess the facts that are contested and those that are admitted, and adapt his investigation procedure accordingly.

[51] In NuStar Terminals Canada Partnership, 2013 OHSTC 1, the conflict of jurisdiction was accepted by the appeals officer as a basis for granting the stay. However, the conflict in that case related to the constitutional jurisdiction over the operations of the employer, where provincial and federal orders of government both claimed to have jurisdiction over that employer. Clearly, the conflict was real and was much more fundamental than the conflict apprehended by the employer in the present case.

[52] Finally, I am not convinced by Canada Post’s concern that the respondents could once again invoke the “competent person’s” absence of impartiality should they be dissatisfied with the outcome of his/her investigation. This concern is premised on the apprehension of the respondents abusing the process and is speculative as well at this stage of the proceedings.

[53] I appreciate that the conduct of another investigation may be disruptive of the work place and will create stress, inconveniences and irritants for all persons involved. I also appreciate that, in the final analysis, this new process may end up having been unnecessary should the outcome of the appeal favour the appellant. I must stress once again that the Code specifically requires directions to be complied with pending an appeal. It must be assumed that Parliament was cognizant of such a possibility and, in my view, this must be accepted as a normal consequence of the policy choices underlying the enforcement scheme under the Code.

[54] Consequently, I find those concerns regarding the second investigation to be more in the nature of “varying degrees of inconveniences” that do not meet the threshold set under the “significant harm” criterion, as stated in Via Rail Canada v. Unifor (at paragraph 31). We are far from the significant disruption or the disproportionate resource implications that were accepted as grounds supporting a finding of “significant harm” in other cases (Brink’s Canada Ltd. v. Robert Dendura; Brink’s Canada Ltd. v. Childs and Unifor; Termont Montréal Inc. v. Syndicat des Débardeurs, SCFP, section locale 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7).

[55] For the above reasons, I conclude that the second element of the test has not been established.

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

[56] Much of the affidavit evidence submitted by the parties, and by the respondents in particular, relate to the third element of the test. The facts are in dispute and would require determination and findings of credibility. Given my conclusion regarding the second criterion, I do not have to make any determination on the third criterion for the purpose of the present application.

[57] Consequently, in reaching my decision, I have not considered any of the evidence introduced through Mr. King or Ms. Kays’ affidavits, which the applicant finds to be prejudicial and regarding which the applicant raised an objection. To the extent that such evidence is relevant to the issue raised by the appeal, its consideration is properly deferred to the merits of the appeal.

Decision

[58] For the reasons set out above, the application for a stay of the direction issued on May 29, 2017 by Ms. Gillis-Williams as Ministerial Delegate is denied.

Pierre Hamel

Appeals Officer

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