2019 OHSTC 13
Date: 2019-05-29
File No.: 2019-18
Between: Kenza Elazzouzi, Applicant
and
Employment and Social Development Canada (Service Canada), Respondent
Indexed as: Elazzouzi v. Employment and Social Development (Service Canada)
Matter: Application for an extension of the deadline for appealing a decision rendered under subsection 129(7) of the Canada Labour Code
Decision: The application is denied.
Decision rendered by: Eric Wildhaber, Appeals Officer
Language of decision: French
For the Applicant: Jennifer Garvey, National Union Representative for the Canada Employment and Immigration Union
For the Respondent: Richard Fader, Senior Counsel, Labour and Employment Law Group, Department of Justice Canada
Citation: 2019 OHSTC 13
Reasons
[1] This decision concerns an application to extend the deadline for filing an appeal under subsection 129(7) of the Canada Labour Code (the Code). The applicant is seeking to be relieved of her failure to file an appeal of a decision of absence of danger rendered on March 25, 2019, by Isabelle Rioux, an official delegated by the Minister of Labour (ministerial delegate), within the prescribed time limit.
[2] For the reasons below, I conclude that the applicant failed to act in a timely manner for no valid reason, which gives me no basis on which to justify an extension of the deadline. The application to extend the time limit is, therefore, refused and the appeal is inadmissible.
Background
[3] On February 26, 2019 the applicant exercised her right to refuse to work under section 128 of the Code, alleging she could not see or work in an area where her team leader was. The ministerial delegate began her investigation on March 7, 2019, and rendered a decision of absence of danger dated March 25, 2019. The applicant filed a notice of appeal of the decision with the Tribunal on April 11, 2019.
[4] On receipt of the notice of appeal, given the documents that accompanied the notice and suspecting late filing, the registrar of the Tribunal wrote to the applicant per the procedure laid down by the Tribunal on April 12, 2019. The email asked her to confirm the date she received the decision of March 25, 2019, rendered by the ministerial delegate. The registrar requested the same information from the ministerial delegate. On that day, April 12, 2019, the applicant indicated that she “became aware of the decision on March 26, 2019, while she was at the airport.” On April 15, 2019, the ministerial delegate indicated that she had sent the decision rendered on March 25, 2019, to the applicant’s personal email address on that very day.
[5] Accordingly, on April 18, 2019, the registrar wrote to the applicant to inform her that her appeal seemed to have been filed after the deadline prescribed in subsection 129(7) of the Code, and to give her the opportunity to present grounds in support of an application to extend the time limit. The letter stated that any such representations had to be made by May 6, 2019, at the latest.
[6] On April 30, 2019, the Tribunal contacted the respondent to confirm whether it intended to respond to the applicant's appeal. The Tribunal also asked the respondent to provide any observations on the request for deadline extension filed by the applicant by May 13, 2019.
[7] The applicant allowed the time limit of May 6, 2019, to pass without responding to the Tribunal’s letter of April 18, 2019. Noting this failure, in an email dated May 8, 2019, the registrar reminded the applicant of the Tribunal’s letter dated April 18, 2019, and asked her to respond by May 10, 2019.
[8] Only on May 21, 2019, did the applicant respond to the email from the registrar dated May 8, 2019 (by May 21, 2019, 33 days had elapsed since the Tribunal’s original letter dated April 18, 2019). The representations in that correspondence read as follows:
We request an extension of the time limit to file an appeal as [the applicant] received the answer when she was at the airport on March 26, 2019, and only returned during the night of April 2 to 3, 2019. It is true that the letter did indicate the outcome of the investigation, but without the reasons we did not file an appeal. We waited […] for the report to make an appeal, and I would like to draw your attention to page 8 of the report (April 1, 2019), which mentions potential recourses. Why mention recourses if that must only be done when the decision is issued?
[9] After receiving the applicant’s observations, the Tribunal sent a letter dated May 22, 2019, extending the respondent’s deadline for submitting its observations until May 27, 2019.
[10] On May 27, 2019 the respondent requested an extension to the time limit for replying to the Tribunal's April 30 and May 22, 2019 communications. On May 28, 2019 the respondent indicated that it intended to participate in the applicant's appeal, but did not submit any observations about the request for extension of the deadline.
[11] On May 28, 2019, I refused the respondent's request for an extension of the time limit for producing observations on the application to extend the deadline filed by the applicant. As a general rule, the Tribunal must be able to rely on the respondent's compliance with submission deadlines, particularly since they have already been extended. In this matter, it was my opinion that the record contained sufficient information for me to rule on the issue without waiting for the respondent's submissions.
Issue
[12] The issue is: Do grounds exist to justify extending the ten-day deadline for filing an appeal under subsection 129(7) of the Code?
Analysis
[13] When an employee exercises his or her right to refuse to work under section 128 of the Code, but an investigation shows that there was no danger, the employee has 10 calendar days from receipt of the decision to appeal it.
[14] Subsection 129(7) of the Code sets out the 10-day time limit for filing an appeal of a decision of absence of danger. Subsection 129(7) reads as follows:
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 or 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.
[15] In principle, if the time limit is not respected, the employee's right of appeal under the Code is extinguished. The employee may, nonetheless, appeal to an appeals officer to ask that the deadline be extended (“extend the time,” to use the phrasing of paragraph 146.2(f) of the Code).
[16] Paragraph 146.2(f) of the Code 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
[Emphasis added].
[17] The determination of absence of danger was rendered on March 25, 2019, but the applicant asserts that she was only notified of the decision on March 26, 2019. Here, I find that there is a dispute as to the exact date on which the ministerial delegate’s decision was communicated to the applicant. The ministerial delegate submits that it was March 25, 2019, whereas the applicant maintains that she only became aware of it the following day, on March 26, 2019. The one-day difference is inconsequential here. In fact, whether the start date for the 10-day deadline is March 25 or March 26, 2019, the Tribunal did not receive a notice of appeal until April 11, 2019, which is more than 10 days after either of those dates (17 days had elapsed since March 25, or 16 days since March 26) for the start of the appeal period.
[18] I am prepared to accept that the applicant was notified of the ministerial delegate’s decision on March 26, 2019. I note, however, that the decision mentions the 10-day time limit for filing an appeal. With March 26 as a start date, the time limit for filing an appeal of the decision would have ended on April 5, 2019, 10 days after receipt of the decision.
[19] In the circumstances that concern us here, the time limit must be calculated beginning on the day after March 26, 2019. The first day after March 26 is March 27, and so on. The tenth day after March 26 thus fell on April 5, 2019. In principle, the right of appeal lapsed as of midnight on April 6, 2019. The Interpretation Act contains the rules for computing time limits which would lead to that conclusion.
[20] However, the applicant only filed her notice of appeal with the Tribunal on April 11, 2019, 6 days after the deadline of April 5, 2019. I understand that the applicant was away until April 3, 2019. She had to act before April 5, 2019, in order to maintain her right of appeal. She did not do so.
[21] There is nothing in the file to explain why the applicant waited until April 11, 2019 – more than a week after April 3, 2019 (date of the Applicant's return) – to file her notice of appeal with the Tribunal.
[22] An extension is normally only granted if the employee can show that he or she intended to appeal the decision during the initial time limit but was unable to act in a timely manner despite his or her diligence; if necessary, the appeals officer also examines any harm that a decision on extending the time limit may cause to the parties. Appeals officers draw on these principles regularly, recently in Lambe v. McKevitt Trucking Ltd., OHSTC 2019 2 (Lambe).
[23] I will not use my discretionary power under paragraph 146.2(f) of the Code to extend the time for filing an appeal because the applicant was unable to show that she had decided to appeal the ministerial delegate’s decision between March 26 and April 5, 2019, the time period during which her right of appeal had to be exercised. Nor has the Applicant demonstrated that she acted diligently to exercise her right of appeal during that time period, or that she was prevented from doing so.
[24] The representations made to the Tribunal do not report any extraordinary circumstance that could justify extending the deadline. She does allege that she was travelling (the destination is not specified, nor does she state whether she had any way of communicating); however, being on a trip for a few days is not exceptional in and of itself.
[25] Without basing my conclusion on that, I do note that the applicant was slow in replying to the Tribunal’s communications, as stated above, which reveals a lack of reasonable diligence with respect to the overall handling of this matter.
[26] The Code clearly states that the 10-day time limit begins to run upon the “receipt” of a “decision” by a ministerial delegate. Nor can I extend the time limit in the Code for the reason invoked by the applicant, for example, that she did not have the reasons for the decision until a date subsequent to the date on which the decision itself was communicated. According to the Code, the date of receipt of the reasons for the decision is quite simply not the date on which the time for filing an appeal starts to run.
[27] If the reasons for a determination of absence of danger are not communicated at the same time as the decision itself, employees must preserve their rights to appeal by sending a notice of appeal to the Tribunal within 10 days of receiving the decision, even if a decision as to whether it is appropriate to go forward with an appeal has to be made after the reasons are received.
[28] Since the applicant provided no valid reason for her failure to act in a timely manner, or any evidence of an intention to file an appeal during the regular time period, the above reasons are sufficient to dispose of this case.
[29] I would like to take this opportunity to formulate a few suggestions for ministerial delegates so that they can help combat the phenomenon of late notices of appeal. The notices are filed late for all kinds of reasons, but 2 reasons stand out, in my opinion. Some of the notices of appeal are late due to appellant inaction, as in this case. Others may be filed late due to what I suspect is the appellants’ misunderstanding of the urgency of acting expeditiously after receiving a determination of absence of danger, or due to a misunderstanding of how to calculate the appeal deadline (see Lambe, for example). To counter these shortfalls and improve access to administrative justice, I therefore suggest that ministerial delegates include in their notices of decision a notation that appellants have 10 “calendar” days to file an appeal and that “failure to act within that time may extinguish any right of appeal.”
Decision
[30] The application is refused. The appeal is inadmissible because it was filed after the deadline.
Eric Wildhaber
Appeals Officer