2017 OHSTC 23

Date: 2017-11-21

Case No.: 2017-30

Between:

Patrick Veilleux, Applicant

and

Correctional Service of Canada, Respondent

Indexed as: Veilleux v. Correctional Service of Canada

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

Decision: The request is denied.

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

Language of decision: French

For the appellant: Himself

For the respondent: The respondent did not participate in the present application.

Citation: 2017 OHSTC 23

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 is requesting to be relieved of his failure to file an appeal within the 10 days prescribed by the Code of a decision that a danger does not exist rendered on August 23, 2017 by Mr. Régis Tremblay, an Official Delegated by the Minister of Labour (Ministerial Delegate).

Background

[2] The morning of March 20, 2017, an inmate of the Correctional Service of Canada, La Macaza Institution (the inmate) did not follow instructions to remain in his cell (in “deadlock”). After the correctional officers noticed that the inmate was headed toward the kitchenettes, they ordered him to return to his cell. The inmate refused to obey the correctional officers’ orders and uttered threats to them. An offence report was sent to the correctional manager and the inmate was placed in administrative segregation.

[3] On April 5, 2017, the inmate was released from administrative segregation. Around 2:30 p.m. that day, the applicant noticed the inmate arriving at Wing A and feared for his own safety; he was taken over by anxiety and panic. He then informed his supervisor that he wanted to exercise a refusal to work under section 128 of the Code.

[4] An investigation was carried out between May 8, 2017 and July 28, 2017, and after the Ministerial Delegate conducted an extensive assessment of the facts, he concluded in a decision rendered on August 23, 2017 that a danger did not exist.

[5] The Tribunal received Mr. Veilleux’s appeal form on September 15, 2017. However, when a document is sent to the Tribunal by registered mail, as in the case here, the document is deemed to have been received by the Tribunal on the date indicated on the postmark. In the case at bar, Mr. Veilleux’s appeal form is therefore deemed to have been received by the Tribunal on September 12, 2017.

[6] On September 15, 2017, the Registrar of the Tribunal informed Mr. Veilleux by email that his notice of appeal appeared to have been submitted beyond the 10-day statutory time limit set out in subsection 129(7) of the Code. The Registrar required Mr. Veilleux to provide written submissions to the Tribunal before September 26, 2017, if he believed he had sufficient reasons to request to be relieved from his failure.

[7] On September 26, 2017, Mr. Veilleux emailed his reasons to support an extension of the appeal period. On the same date, the Registrar of the Tribunal asked the applicant, by email, for the date on which he had gone to the post office to pick up a copy of the Ministerial Delegate’s decision. Again in an email, Mr. Veilleux stated “Sous toute réserve le 1er septembre [translation: Without prejudice September 1]”.

[8] However, it should be noted that the Registrar of the Tribunal contacted the Ministerial Delegate, who provided him with a copy of an email sent to Mr. Veilleux on August 23, 2017, at 10:14 a.m., to inform him of the decision that a danger does not exist that is at issue here. The email was also addressed to Martine Leclerc, Assistant Warden, Management Services at La Macaza Institution.

[9] Finally, another element that must be considered is a Canada Post document indicating that the Ministerial Delegate sent his decision by registered mail to the applicant’s address in Rivière-Rouge, Quebec, and that Mr. Veilleux received the decision by hand on August 31, 2017 at 3:57 p.m., his signature confirming receipt.

Issue

[10] The issue that must be addressed is whether I should exercise the discretion conferred upon me by paragraph 146.2 (f) of the Code to extend the 10-day time limit to file an appeal under subsection 129(7) of the Code.

Applicant's submissions

[11] On September 26, 2017, Mr. Veilleux provided some brief submissions by email to support his request to be relieved from his failure to file an appeal within the statutory time limit.

[12] He basically explained that once he was informed of the Ministerial Delegate’s decision, the 10-day period included two weekends, including a statutory holiday, during which the Canada Post offices were closed. He also explained the problems with respect to his shifts that limited his availability. Lastly, on a personal level, he mentioned having to accompany his spouse, who was on a medical leave of absence, to her medical appointments.

Analysis

[13] It is not disputed in this case that the appeal deadline set out in subsection 129(7) of the Code was missed. This subsection provides that an employee may appeal the decision referred to in paragraph 128(13)(b) or (c), in writing, to an appeals officer within 10 days after receiving notice of the decision:

129(7) If the Minister makes a decision referred to in paragraph 128(13)(b) or (c), the employee is not entitled under section 128 of this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within 10 days after receiving notice of the decision.

[Emphasis added]

[14] According to the documentation provided by the Ministerial Delegate, the decision that a danger does not exist was first communicated in an email sent to the applicant’s email address (@csc-scc.gc.ca) on August 23, 2017. Moreover, the documentation provided by the Ministerial Delegate also indicates that there were exchanges of correspondence between the Ministerial Delegate and the applicant at that email address.

[15] It should be noted that the email address (@csc-scc.gc.ca) was also used by the applicant on September 26, 2017 in order to provide the reasons for his request to extend the 10-day time limit. That same day, there was an email exchange between the Registrar of the Tribunal and the applicant as to the date on which the applicant received notice by registered mail of the Ministerial Delegate’s decision.

[16] As mentioned earlier, the Ministerial Delegate sent a second notice of the decision by registered mail on August 31, 2017.

[17] The applicant sent his appeal form by registered mail on September 12, 2017, although the form was signed on September 9, 2017.

[18] An appeals officer had previously addressed the issue of the time limit under subsection 129(7) in Alex Hoffman v. Canada (Border Services Agency), 2013 OHSTC 19 (Hoffman) :

[16] I read subsection 129(7) to mean that an employee must bring an appeal to an appeals officer, in other word the Occupational Health and Safety Tribunal Canada, within that period of 10 days from the date he or she is notified of the decision that a danger does not exist. This time limit, it seems to me, is a strict limit, although an appeals officer is given the power to extend such limitation for valid reasons, which will be further discussed later in these reasons (see Suàrez v. Canada, 2007 PSST 8; Allard v. Canada (Public Service Commission), [1982] 1 F.C. 432; Lalancette v. Canada (Public Service Commission), [1982] 1 F.C. 435).

[19] An appeal is not filed merely by signing an appeal form within the prescribed time limit and sending it to the Tribunal. It is necessary to ensure that it is received by the Tribunal on time. If not, the reasons for the delay must be explained using reasonable grounds.

[20] In the present case, I must determine whether it is warranted for me to use my discretionary power to extend the time limit for filing an appeal based on the reasons put forward by the applicant.

[21] First, the decision that danger does not exist was communicated twice to the applicant: a first time by email on August 23, 2017, and a second time by registered mail on August 31, 2017.

[22] It appears from the email communications between the Ministerial Delegate, the Registrar of the Tribunal and the applicant that the email address used by the applicant (@csc-scc.gc.ca) is the one he uses to communicate with the parties involved. It is the address that was used for official communications regarding the refusal to work in this case. Thus, I have difficulty seeing how it can be concluded that the applicant did not receive the Ministerial Delegate’s decision sent to him by email on August 23, 2017.  

[23] According to my calculation of the time between when the Ministerial Delegate's decision was received and when the applicant’s appeal form was sent, the period was 20 days starting on August 23, 2017 and 12 days starting on August 31, 2017. In both cases, the applicant missed the deadline stipulated in subsection 129(7) of the Code.  

[24] Secondly, the appeals officer must consider a number of factors when exercising the discretionary power under paragraph 146.2 (f):

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;

[25] In Hoffman cited above, the appeals officer states the factors to be considered in the exercise of this discretion:

[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. A provision enabling the decision-maker to extend time limits is commonly found in statutes establishing administrative tribunals. 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.

[26] The applicant explained, in his correspondence of September 26, 2017, the reasons that led him to file his appeal beyond the statutory time limit: (1) that there were two weekends and a statutory holiday following receipt of the decision by registered mail on August 31, 2017 and that consequently the Canada Post offices were closed; (2) that he had a rotating work schedule and therefore did not have many days off; and (3) that his spouse was on a medical leave of absence and he was trying to accompany her to her various medical appointments as often as possible.

[27] In my view, the applicant’s three reasons are part of the uncertainties of daily living. A party requesting an extension of time must show a continued intention to appeal the decision of a ministerial delegate and that intention must be supported by his or her actions throughout the period from the time the decision was received to the time the appeal is filed. The applicant's actions show a degree of carelessness. For example, the appeal form is dated Saturday, September 9, 2017. However, the applicant only mailed the form on Tuesday, September 12.  

[28] Accordingly, after examining all of the circumstances of the case, I find that the applicant failed to demonstrate that he was faced with exceptional circumstances that prevented him from filing his appeal with the Tribunal within the prescribed time. Furthermore, he failed to establish a personal situation that would warrant an extension of time for compassionate grounds, another criteria taken from the Hoffman decision.

Decision

[29] The request for an extension of time is denied. The appeal received by the Tribunal on September 12, 2017 is therefore inadmissible.

Marie-Claude Turgeon

Appeals Officer