2019 OHSTC 4

Date: 2019-02-13

Case Nos.:

2018-25

2018-34

Between:

Natural Resources Canada, Applicant

and

Professional Institute of the Public Service of Canada, Respondent

Indexed as: Natural Resources Canada v. Professional Institute of the Public Service of Canada

Matters: Application for a stay of two directions issued by an official delegated by the Minister of Labour 

Decision: The application for a stay is denied.

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

Language of decision: English

For the applicant: Ms. Christine Langill, Counsel, Centre for Labour and Employment Law, Department of Justice Canada, Corporate Labour Relations          

For the respondent: Ms. Marie-Claude Chartier, Employment Relations Officer,

Professional Institute of the Public Service of Canada

Citation: 2019 OHSTC 4

Reasons

[1] The present application for a stay concerns two directions that were issued by an official delegated by the Minister of Labour, Fancy Smith (ministerial delegate), on August 31 and on November 5, 2018, concerning alleged contraventions by the applicant to the Canada Labour Code, RSC 1985, c L-2(Code).

[2] The direction issued on August 31, 2018, concerns a failure by the applicant to appoint a competent person to investigate unresolved work place violence complaints. The complaints had been reported to the employer on June 10, 2016. The direction identifies a contravention to paragraph 125(1)(z.16) of the Code and to subsection 20.9(3) of the Canada Occupational Health and Safety Regulations, SOR/86-304(Regulations), and orders that the contravention identified be terminated no later than September 12, 2018. I will refer to this direction as the first direction.

[3] The direction issued on November 5, 2018, concerns the ensuing failure by the applicant to comply with the first direction in not appointing the required competent person to investigate the unresolved work place violence complaints, thus a contravention to paragraph 125(1)(x) of the Code. This direction orders the contravention identified to be terminated no later than November 19, 2018. I will refer to this direction as the second direction.

[4] The applicant filed appeals against both directions pursuant to subsection 146(1) of the Code, seeking the rescission of the two directions. The applicant is now seeking to have both directions stayed pending a hearing and a decision on the appeals. For the sake of clarity, since the two directions appealed involve the same parties and facts, the appeals in file numbers 2018‑25 and 2018-34 are hereby joined for consideration and decision.

Background

[5] The circumstances surrounding this matter originate with an incident that took place in 2014. Since then, multiple complaints and allegations having to do with violence, interactions or conduct in the work place, as well as the sources, origins and investigation of such. The pivotal person in those complaints is Person B. In these proceedings, Person B is acting through the Professional Institute of the Public Service of Canada. I must point out that while both sides have provided extensive details and particulars as to many occurrences in the interval between 2014 and the present time, many of those may have relevance regarding the future determination of the two appeals that mark this case, but very little as to the determination of the present stay application.

[6] In 2014, a violence in the work place complaint was made against Person B by an employee under Person B's authority. During the ensuing internal investigation by three employees of the applicant (which Person B had initially accepted), Person B was simply informed that the complaint, hereinafter referred to as the 2014 complaint, concerned “yelling and bullying [that] occurred within the group that [Person B] supervised”. In considering the draft investigation report received in May 2015, Person B formed the opinion that the right to a fair and impartial investigation had not been respected. This opinion was based on a number of shortcomings of the investigation that need not be enumerated at this stage. This however, caused Person B to also form the opinion that the three investigators lacked the impartiality and the needed competence to conduct such an investigation under section 20.9 of the Regulations. Person B brought these concerns to the attention of the applicant, the labour relations division and the lead investigator, but to no avail. This caused Person B to file a complaint with the Labour Program of Employment and Social Development Canada in July 2015, claiming that the applicant had failed to appoint a competent person to conduct the prescribed investigation.

[7] That complaint was investigated by a ministerial delegate who concluded in November 2016 that the applicant had failed to appoint a person meeting the definition of “competent person” under the Regulations, more specifically, that the persons appointed were not impartial throughout the investigative process. The ministerial delegate in this case consequently directed the applicant to appoint a competent person to conduct the investigation.

[8] The applicant appealed that direction to the Tribunal in December 2016, challenging the ministerial delegate's authority to challenge the appointment of a competent person once the parties have agreed on such at the time of appointment; an authority that the applicant asserted was solely that of the Federal Court.

[9] In December 2017, without seeking a stay of the direction, the applicant advised Person B that it would not comply with the ministerial delegate's direction to undertake a new investigation regarding the 2014 complaint that was the object of the direction appealed until the Tribunal had rendered a decision on the appeal.

[10] In March 2018, the Tribunal rejected the applicant's appeal in its decision Natural Resources Canada v. Professional Institute of the Public Service of Canada, 2018 OHSTC 1, finding that the applicant had failed to appoint a competent person that met the requirements of the Regulations. Not only the appointed persons were not impartial throughout the investigation process, but also that one of the three persons did not have the required level of training, experience and knowledge to conduct such investigation. The end result of this decision was that the Tribunal confirmed the 2014 direction, with variance, and ordered a new investigation to be conducted in Person B's case.

[11] In April 2018, the applicant advised the Labour Program that since the complainant at the source of the 2014 complaint no longer wished to pursue the matter, it would not proceed with the investigation that had been ordered by the Tribunal, thereby, for all intents and purposes, seemingly failing to comply with the varied direction identifying the contravention of paragraph 125(1)(x) of the Code. The decision not to pursue the matter appears to have been made unilaterally by the applicant.

[12] Somewhat concurrently to the progress of the 2014 complaint, upon receiving the draft investigation report concerning the 2014 complaint and also through ATIP requests, Person B learnt of the identity of all the individuals who had been interviewed in the context of the 2014 complaint as well as the substance of their statements. This prompted Person B to file work place violence complaints against 11 individuals in February and June 2016, with two additional individuals being added to those in May 2017.

[13] In February 2017, the applicant informed Person B that it would comply with the direction issued by the ministerial delegate in November 2016 concerning the 2014 complaint, and would proceed with appointing a competent person to conduct an investigation of the 2014 complaint. The applicant also informed Person B, at the same time, that at the insistence of the Labour Program, it would also ask the same competent person to examine the 2016 complaints filed by Person B, even though the applicant had already concluded that the allegations raised therein did not constitute violence in the work place.

[14] Subsequently, given the large number of individuals involved, no agreement could be arrived at on a competent person to examine the 2016 complaints. In addition, it would appear that following a review of the 2016 complaints by the applicant and a Treasury Board Secretariat's senior policy analyst, the elements at the core of the 2016 complaints did not amount to violence in the work place, as defined under the Regulations. Person B was informed of this review and the conclusion arrived at, as well as of the decision by the applicant to consider the matter closed.

[15] In April 2018, the individual at the source of the 2014 complaint informed the applicant, the employer, that he/she no longer wished to pursue the original complaint against Person B, this while an appeal against a direction issued in regard of that complaint had essentially upheld the said direction. Furthermore, in May 2018, the Labour Program requested and was informed by the applicant that the 13 individuals named in the 2016-2017 complaints were either retired, on leave, no longer with the applicant or had little or no interactions with Person B.

[16] On August 31, 2018, the ministerial delegate issued a direction to the applicant ordering the appointment of a competent person to investigate the June 2016 complaints. Subsequently, on November 5, 2018, the same ministerial delegate issued another direction to the applicant, directing that the latter cease failing to comply with the first direction to appoint a competent person to conduct the investigation into “the unresolved workplace violence complaints reported to the employer on June 10 2016”. These two directions are the subject of the present appeal and of this stay application.

[17] Both parties have suggested in their submissions that the present application for a stay should apply to more complaints than what the ministerial delegate has identified in the directions, namely the “[...] complaints reported to the employer on June 10, 2016”. However, the wording of the Code at subsection 146(2) clearly indicates that if a stay is to be granted, it applies only to the direction that is under appeal. In that respect, regardless of what the parties may have interpreted or whether one could deduce that the direction may have been intended to apply to other complaints or amended complaints, the fact remains that the directions as issued only speak of the unresolved complaints of June 10, 2016. The authority of an appeals officer to order a stay applies only to directions, not to complaints that may or may not have been investigated.

Submissions of the Parties

[18] There is no dispute between the parties as to the applicable test in determining whether a stay should be granted. That test was set out by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110, as well as in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, and is constructed around the three following questions:

  • Is there a serious issue to be considered?
  • Will denial of a stay result in irreparable harm to the requesting party?
  • Does the balance of convenience favour the granting of a stay?

[19] Not surprisingly, given the substance and purpose of the Code and the mandate of appeals officers, appeals officers have applied this test in a manner that respects such substance, purpose and mandate, without derogating from the questions formulated by the Supreme Court.

[20] As such, numerous decisions by appeals officers have considered and applied this test, and while the same terminology may not have been used in each case, from a general standpoint, one can say that the three-part test has been adapted to generally read as follows:

  • The applicant must satisfy the appeals officer that, in the case at appeal, there is a serious question to be tried as opposed to a frivolous or vexatious claim;
  • The applicant must demonstrate that it would suffer significant harm if the direction under appeal is not stayed by the appeals officer pending determination of the appeal; and
  • Should a stay be granted, the applicant must demonstrate that measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

[21] As regards the last element of the test, one must be clear that the protection of the health and safety of employees does not differentiate between the safety and health of the employee(s) who may be at the origin of the appeal, and that of all other employees of the work place involved.

[22] This being said, the discretion that can be exercised by an appeals officer in such matters is quite considerable and on this, I share the opinion expressed by my colleague in Brink's Canada Ltd. v. Childs, 2017 OHSTC 4 (Brink's Canada Ltd), to the effect that: “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”.

[23] However, given the primary purpose of the Code, which is the protection of employees, it would be incorrect to take from this that the impact the issuance of a stay may have on the situation of an employee pending determination of the appeal is not also a factor to be considered. I also share the views expressed in Brink's Canada Ltd that a stay of a direction should only be granted exceptionally and in compelling circumstances. While it is true that this would particularly be the case where an appealed direction is based on a conclusion of danger by a ministerial delegate, I am also certainly of the opinion that a stay application can be entertained and assessed in the context of a contravention direction where the stay may have serious impact on the well-being of an employee.

[24] It is the particular facts, context and merit of a case that guide its assessment, and given the early stage at which such application occurs in the course of an appeal proceeding where little or no evidence has been introduced, the statements of the parties in their submissions in support of the application must be given primary importance. However, the stay application should not be determined solely on the parties' submissions as an appeal stems from a first stage decision by a ministerial delegate whose findings and conclusions should receive considerable deference. On this, I am in agreement with my colleague's opinion in Employment and Social Development Canada v. Longval, 2014 OHSTC 12 (Longval), to the effect that:

[18] […] When examining a stay application, I think the appeals officer should give deference to the HSO's findings of fact as presented in his intervention report and assume he is acting in good faith. It is only if the conclusions of the HSO are on their face arbitrary, unfair or irrelevant that the appeals officer can exercise his discretion in favour of a stay direction.

[Underlining in original]

[25] Concurrently to the already mentioned circumstances in this quite complicated case, other issues have arisen around Person B that have led to the initiation of proceedings before another tribunal. As correctly raised and argued by the applicant, those proceedings are outside of my jurisdiction in the present stay application. Those other proceedings relate to a complaint under section 133 of the Code (disciplinary action) to be heard before the Federal Public Sector Labour Relations and Employment Board, and implicate individuals seemingly different from those concerned by the 2016 complaints, and have to do with alleged misconduct. However, a brief description of those circumstances, as submitted by the respondent, serves to demonstrate the prevailing work place atmosphere around the respondent.

[26] As such, quoting from the respondent's submissions:

On March 28, 2018, two weeks after the Tribunal ordered a new investigation with regard to the 2014 complaints, Person B was called to a meeting and was presented with a letter which outlined 4 allegations of misconduct against her. Person B was immediately stripped of her managerial and current duties and was given 15 minutes in which to collect items from her office and to leave the building. She was informed that she was to be relocated to another office offsite and that she was banned from her former building. Person B was also told that the DG had considered suspending her without pay, and that the measures taken against her were to be in effect pending the outcome of an administrative investigation.

[27] It also appears from the respondent's submissions that this administrative investigation was interrupted on November 15, 2018, at the direction of the applicant's Labour Relations division, and that Person B has been on sick leave since March 28, 2018.

A) Applicant's Submissions

[28] The applicant first submits that the ministerial delegate's decision to issue the two directions appealed following her investigation into the 2016 complaints falls within the category of “arbitraryand “unfair”. Consequently, the appeals officer should not give deference to the ministerial delegate's findings when examining the present stay application since, in the opinion of the applicant, the investigation conducted by the ministerial delegate suffers from a number of shortcomings.

[29] More particularly, the applicant contends that after having been informed of the applicant's decision of May 3, 2016, to close the 2016 complaints, the ministerial delegate made no attempt to contact the applicant until the issuance of the direction of August 31, 2018. The applicant also contends that for the course of the ministerial delegate's investigation, Person B had not been in the work place and therefore could not be the subject of potential work place violence. Furthermore, on the matter of the investigation, the applicant contends that the ministerial delegate failed to adhere to the principles of natural justice and procedural fairness, in that none of the parties were aware that the ministerial delegate was conducting a site analysis, and the applicant was not given a fair opportunity to participate and respond to the ministerial delegate's investigation of the 2016 complaints.

[30] Finally, the applicant submits that the statement found in the ministerial delegate's investigation report, regarding the threshold to be met in these complaints to the effect that “the bar is quite low on this and the default is to assume that it had occurred”, is not only contrary to natural justice, but also that a low threshold does not mean a decision maker is to automatically assume that violence in the work place has occurred.

Is there a serious question to be tried as opposed to a frivolous or vexatious claim?

[31] As concerns the three-part test applicable to this matter, one must first deduct from the applicant's submissions that the applicant is of the opinion that there is no serious question to be tried. This is based on the applicant's contention that Person B's filing of harassment and various grievances may create a duplicity of proceedings. For more precision, the applicant notes that the complainant in the 2014 complaint is no longer interested in pursuing the matter, a fact that brings the employer to concluding that the matter or file is therefore closed. Furthermore, as concerns the 2016 complaints at the center of the present appeal, the applicant contends that the motivation behind those complaints appears to stem solely from the participation of the individuals who were questioned in the investigation of the 2014 complaint and who now have all had a violence in the work place complaint filed against them.

[32] In this regard, the applicant submits that seven of the 13 individuals targeted by the 2016 complaints are no longer working for the applicant, which of the remaining six, only two could potentially have limited interactions with Person B, who remains on sick leave since March 2018. Most of the employees identified in the 2016 complaints have indicated their desire not to be involved for fear of what the applicant describes as further reprisal from Person B.

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

[33] The applicant further submits that irreparable harm to the employer will result if the directions are not stayed and the applicant is required to proceed with an investigation of the complaints before a conclusion is reached with respect to the appeal of the directions, for two reasons. The first reason essentially has to do with the circumstances recounted in the preceding paragraph and what the applicant describes as the potential harm to the employees named in the 2016 complaints. It is the applicant's submission that if an investigation commences and the applicant is subsequently successful in its appeal, the employees named in the 2016 complaints will have been unnecessarily exposed to a process in which fear of reprisal from Person B has been expressed as a concern.

[34] The second reason put forth by the applicant relative to the significant or irreparable harm it may suffer has to do with the latter's responsibility concerning the use of public funds. On this point, it is the applicant's submission that its authority to use public funds is bound by parameters set by the Financial Administration Act, and that given the size of the applicant's organization and because its resources are limited, committing funds to what an appeals officer may eventually determine to be an unnecessary investigation would not be merely an inconvenience or annoyance, but an irresponsible use of public funds. Putting this in perspective, the applicant argues that beyond cost, the broader context of 11 employees fearing reprisal should suffice to satisfy the second part of the test.

Has the applicant demonstrated that measures will be put in place to protect the health and safety of employees or any person granted access to the work place, should the stay be granted?

[35] The applicant submits that measures are in place or will be put in place to ensure the health and safety of employees or any person granted access to the work place should the stay be granted. Stating its agreement that the purpose of the Code is the prevention of violence in the work place and that as such, it is clearly intended in the Code that directions are enforceable notwithstanding that they may be appealed and that an eventual decision may bring about the rescinding of such, the applicant points to numerous measures and circumstances that ensure the protection of Person B from violence. Those are:

  • Since March 2018, Person B has been assigned new duties in a different work location;
  • Although Person B is currently on sick leave, any immediate return to work would also be in a different work location until the administrative investigation is concluded and also this appeal; and
  • Should Person B be returned to her normal place of work in the interim, she will most likely have no contact whatsoever with the respondents named in the 2016 complaints, and if by chance such contact occurs, it would be very limited.

[36] The applicant thus argues that should the stay be granted, Person B would not have contact with the employees named in the complaints and thus, could not be subjected to alleged violence in the work place from any of these individuals.

[37] The applicant concludes that considering Person B's absence from the work place, her safety would be protected pending final disposition of the appeal, as it was accepted in Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2013 OHSTC 36.

B) Respondent's Submissions

Is there a serious question to be tried as opposed to a frivolous or vexatious claim?

[38] On the first part of the test, the respondent submits that the question raised by these appeals and the present application concerns the applicant's obligation, given the circumstances of the case, to investigate the circumstances of work place violence as defined in Part XX of the Regulations. It is the submission of the respondent that this constitutes a serious issue to be tried.

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

[39] On the question of potential significant harm to the applicant, should the directions not be stayed, and thus relative to the applicant's contention that it will suffer significant harm should it be forced to launch an investigation that may in the end prove unnecessary should the appeal succeed,  the respondent argues that the fact that an investigation conducted by a competent person will likely deal with the same facts as upcoming appeals does not constitute significant harm, basing such argument on the reasoning of this Tribunal in Longval,to the effect that priority should be given to the objective of prevention:

[20] […] One can lament this situation which, with the multitude of proceedings and the resulting risk of contradictory decisions, is not ideal. But the law is drafted in this manner and the possibility that measures ordered as part of a direction will be subsequently rescinded is a constraint that is inherently linked to the statutory framework provided for by the Code.

[40] On the submission made by the applicant relative to the cost associated with the appointment of a competent person and the applicant's obligation to be fiscally responsible in its use of public funds, the respondent argues that financial harm must be assessed on the basis of the cost involved on the one hand, and on the employer's size and resources on the other. The respondent, however, is of the opinion that while it is true that investigations are expensive, the impact the investigation sought in this case would not be significant for a Department such as the one of the applicant, drawing an analogy to the conclusion arrived at by this Tribunal in Longval regarding another federal Department (Employment and Social Development Canada):

[22] […] In this case, the costs associated with appointing a competent person, presumably professional fees or wages of this person, and the costs of conducting the investigation have not been specified and will, when all is said and done, be minimal in relation to the considerable resources of Employment and Social Development Canada.

[41] As regards this particular argument by the applicant, the respondent submits that the applicant's concerns with regard to public funds seems to be quite flexible since it did not hesitate to launch an extensive investigation regarding Person B's behaviour that lasted for more than 8 months and involved up to 40 witnesses, focussing solely on Person B, rather than proceed with the investigation on the 2014-2016 complaints as directed by the ministerial delegate. Referring to the fact that some employees involved in these events no longer work for the applicant, are no longer working in the same section as Person B or may no longer want to be involved for fear of reprisal, the respondent submits that this does not alter the applicant's obligations under section 20.9 of the Regulations, citing again the decision in Longval to the effect that:

[23] […] It goes without saying that an investigation following a complaint of work place harassment and violence is likely to create some tension in the respondent's work environment. However, these are just inconveniences or annoyances that, in my view, do not demonstrate the significant harm required for me to grant a stay.

[42] Furthermore, needing to advise all the employees named in the complaints that their file would be reopened given the applicant's obligation to proceed with the investigation is not a valid claim of harm, since this would allow the applicant to invoke its own ill advised behaviour where it should not have advised its employees that it would not proceed with the investigation into Person B's complaints, without confirmation from the ministerial delegate that it could so decide.  

Has the applicant demonstrated that measures will be put in place to protect the health and safety of employees or any person granted access to the work place, should the stay be granted?

[43] Regarding the third part of the test, which deals with protective measures put in place should a stay be granted and pending determination of the appeal, the respondent submits that the employer has not demonstrated that appropriate measures have been taken. In the respondent's opinion, removing Person B's managerial and other duties and relocating the latter offsite does not protect Person B's health and safety, since Person B is again submitted to an unfair and lengthy investigation process based on vague anonymous statements, while Person B's own violence complaints remain ignored by the applicant. Delaying the process until the appeal on the directions is heard would only make things more difficult as other employees might leave the work place in the meantime.

[44] By way of conclusion, the respondent submits that the applicant has not met the required criterion of material harm to validate a stay of the directions, as it has demonstrated at the very most only varying degrees of inconvenience. As a result, the stay application should be dismissed, and the stay denied.

Analysis

[45] The first element of the applicable three-part test would have the undersigned determine whether, in the circumstances of the case at hand, there is a serious question to be tried as opposed to a frivolous or vexatious claim.

Is there a serious question to be tried as opposed to a frivolous or vexatious claim?

[46] On first examination of the submissions made by both parties, there appears to be a general consensus that the question to be determined in this appeal is whether there is an obligation on the employer to name a competent person to investigate the allegations of work place violence in the circumstances of the 2016 complaints and, somewhat indirectly, the 2014 complaint.

[47] The question to be tried would be simple enough, were it not for the fact that this stay application concerns the appeals of two different directions. Albeit both directions are intertwined through the same situational facts, when looked at with a more analytic eye, they raise two questions: (1) one dealing with the applicant's obligation to name a competent person to investigate once a work place violence complaint has been made; and (2) whether there has been failure to comply with the direction issued by the ministerial delegate. A direction is an order made pursuant to the Code. This brings the underlying question of whether under the Code, there are reasons, motives or elements that would make it possible for an employer to not abide by a direction issued under subsection 145(1) of the Code. This question needs to be considered while keeping in mind the facts that there are essentially two sides in every complaint of violence in the work place, the complainant and the party about whom the complaint is made, and that the investigation process under the legislation intends the protection of both sides of the complaint. 

[48] While stated in this manner, and I recognize that these questions have not been expressed as clearly by the parties in their submissions, such questions may be far ranging. This also serves to demonstrate that in my opinion, there are serious questions to be tried, questions that are not frivolous or vexatious claims.

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

[49] As to whether the applicant will suffer significant harm if the directions are not stayed, that part of the test, also referred to as the balance of convenience, cannot in my opinion be assessed in favour of the applicant. The applicant has essentially invoked two reasons for an affirmative finding on this point.

[50] The applicant painted the numerous complaints made by Person B as reprisals, something that may or may not be the case and would be part of the assessment of the complaints per se. The applicant stressed the fact that on one hand, the complainants risk being exposed unnecessarily to a process in which most of them have already indicated no longer wanting to be involved for fear of potential reprisals. On the other hand, the applicant has indicated that more than half of those complainants no longer work for the applicant, and that of the remaining 6 individuals, only two could possibly have interactions with Person B. Even at that minimal, with Person B either relocated or absent on sick leave, complying with the directions now and having the investigation proceeded with would, in my view, represent little more than an inconvenience for those individuals.

[51] Also, while it is true that proceeding now with the investigation may engender duplicity of proceedings, I am of the opinion that complying with the legislation does not constitute significant harm within the meaning of the test. In this regard, I share the opinion expressed by my colleague in Longval, to the effect that:

[20] […] The legislator clearly intended for directions issued by HSOs to be enforceable even if such directions are appealed, knowing full well that a direction in favour of the appellant could lead to such a situation. Notwithstanding this fact, the legislator chose to give priority to the objective of prevention sought by the Code by requiring that orders issued by health and safety officers be immediately applied.

[52] Along the same line, with reference to the claim by the applicant that failure to dismiss the stay application, therefore requiring the investigation to commence before the appeals have been heard, could, were the appeals successful, mean that the employees named in the 2016 complaints would have unnecessarily been exposed to potential reprisals from Person B. I would add that if I were to accept a rationale based on the contention that a stay should be granted because otherwise, a party having initiated an appeal proceeding would possibly be exposed to the consequences of an unhappy ending to the process initiated, this would almost guarantee that a stay would be granted every time it is applied for. Furthermore, in the present instance, what the applicant is invoking is potential harm to individuals it employs, not to itself. This is somewhat removed from irreparable harm to the applicant.

[53] The second reason invoked by the applicant had to do with the financial cost the applicant would have to incur in proceeding with an investigation that in the end may prove unnecessary should the appeals be successful, given the employer's size and resources.

[54] While I offer no opinion as to the validity of investigative steps initiated by the applicant concerning parallel measures and grievances formulated by Person B to be dealt with in another forum, I will say that the applicant cannot expect to have it both ways and claim financial duress in this case and proceed with an extensive investigation in parallel proceedings. In this regard, I share the opinion expressed by the respondent to the effect that proceeding with an investigation here, before the appeals have been heard, will not have a significant impact on the applicant. On this, I also adapt and make mine the views cited by the respondent and expressed by my colleague, again in Longval, to the effect that:

[22] […] In this case, the costs associated with appointing a competent person, presumably professional fees or wages of this person, and the costs of conducting the investigation have not been specified and will, when all is said and done, be minimal in relation to the considerable resources of Employment and Social Development Canada.

[55] I also am of the view that proceeding in the application of the legislation does not amount, in principle, to an improper use of public funds.

[56] I consequently find that the applicant has not satisfied the burden of establishing that it would suffer significant harm if the directions were not stayed. Having concluded as such, it is clear that the application for a stay of the directions will be dismissed. It is therefore not necessary to consider the third part of the test concerning protective measures that would be put in place should the stay be granted. I would add nonetheless that the circumstances of all the persons involved, be it the employees or former employees concerned by all the complaints discussed above or the originator of such, would not make it necessary to instigate other measures be put in place.

Decision

[57] For the above reasons, the application for a stay of the two directions is dismissed

Jean-Pierre Aubre

Appeals Officer

Page details

Date modified: