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The Tribunal and appeals officer

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The Occupational Health and Safety Tribunal Canada (hereafter the Tribunal) is located in the National Capital Region. It is staffed by Appeals Officers who have been designated by the Minister of Labour for the purpose of sections 129(7) and 146 of the Canada Labour Code, Part II (the Code). The staff also comprises one assistant and one case management coordinator whose primary responsibility is to handle all communications between the parties and the Appeals Officers and to coordinate hearings without any involvement of the Appeals Officer. The reason for this is to protect the neutrality and impartiality of the Appeals Officers.

The mandate of the Appeals Officer is to receive, hear and dispose of appeals of decisions [ss.129(7)] and directions [s.146] issued under the Code in all sectors under Part II jurisdiction, such as the Air, Rail, Marine and Oil and Gas sectors, the federal Public Service and businesses such as road transportation, banks, ferries, grain elevators etc.

The evolution of the role of the appeals officer

1968

Since its first issue on January 1st 1968, Part II of the Code, then entitled the "Canada Labour (Safety) Code", contained a right to appeal to the Regional Safety Officer in subsections 19(2), (3) and (4). This "review power" of the Regional Safety Officer (which has now become the "appeal function" of the Appeals Officer) was perceived and conceived as a purely administrative process by the drafters of the legislation.

Because the Department of Labour (now HRSD Labour Program) viewed this process as purely administrative, it devolved upon its regional technical advisors in occupational health and safety the responsibility to perform a dual function, i.e. to administer the Code, which included advising health and safety officers on all aspects of the Code, and to review directions issued by health and safety officers under their guidance. When an employer or an employee received a direction and was informed of his right to request a review of the said direction, the person responsible for reviewing the direction was the HSO technical advisor, i.e. the same person who had initially advised the health and safety officer on the direction that was to be issued. Obviously, this created a conflict of interest given that the person reviewing the direction was also involved in the issuance of the direction. This situation prevailed until the end of 1989.

1989-2000

In December 1989, the Federal Court of Appeal, in the Attorney General of Canada vs. Bonfa, received, heard and disposed of the decision of a Regional Safety Officer under section 28 of the Federal Court Act, thereby establishing the review function of the Regional Safety Officer as quasi-judicial in nature. This was an important decision, because it meant that the review of the direction process, as it existed until then, would have to change significantly. It also meant that some rules governing fairness had to apply to the review process. The Court's decision resulted in the centralization of the review process and the creation of the Office of the Regional Safety Officer. This situation lasted until September 2000.

2000

In order to formalize the appeal process, amendments that came into force on September 30, 2000 were made to the Canada Labour Code, Part II, to give special powers to the Appeals Officers (known until then as Regional Safety Officers).

Appeal of health and safety officers’ decisions and directions

1. Appeal of Decisions

The old: Labour Code, Part II

Prior to the coming into force of the amendments to the Code, in September 2000, the Public Service Staff Relations Board (PSSRB) for employees of the Public Service and the Canada Industrial Relations Board (CIRB) for all other employees under Part II jurisdiction, had sole jurisdiction under subsection 129(5) of the "old" Code to hear appeals of safety officers' decisions of "absence of danger" in refusal to work situations. Where safety officers decided that a situation constituted a danger to an employee refusing to work, they were, and still are, under the statutory obligation of ss.129(6) to issue directions to the employer to correct the situation. The Regional Safety Officer had sole jurisdiction to hear "appeals" of directions concerning danger in those cases, and in any case where a direction was issued. As a consequence of this situation, health and safety issues were being decided by three separate entities, which had distinct approaches to health and safety matters.

The new Canada Labour Code, Part II

A significant change was made to the Code in September 2000, regarding appeals of decisions of "absence of danger" in right to refuse to work situations. It is found in subsection 129(7), which reads:

129.(7) If a health and safety officer decides that the danger does not exist, 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 ten days after receiving notice of the decision.

Following amendments to the Code, Appeals Officers have been entrusted with the responsibility to hear appeals of decisions of "absence of danger" issued by health and safety officers following their investigation into a refusal to work, a responsibility which was devolved exclusively upon the Boards under the "old" Code. The Appeals Officer is now the only administrative tribunal under Part II jurisdiction making jurisprudence in occupational health and safety. Evidently, the legislator chose to have health and safety issues resolved by a single tribunal specialized in health and safety matters. The Boards nevertheless retain responsibility under section 133 of the Code for labour relations matters, such as any disciplinary action taken by an employer against an employee in contravention of section 147.

Under subsection 129(7), any appeal of a health and safety officer’s decision of "no-danger" must be made in writing, as in the past. Technically, the appeal is no longer made to a health and safety officer but to an appeals officer. The Tribunal has been assured of the cooperation of health and safety officers in advising the employee, or the employee’s representative, who wishes to appeal the investigating officer’s decision of "no-danger" of the procedure to follow and of the address of the Tribunal.

In the past, the refusing employee had 7 days to appeal a no-danger decision of a health and safety officer. The employee now has 10 days to appeal that decision, from the moment he/she receives the written decision. Under subsection 129(4) of the Code, the health and safety officer must notify immediately and in writing the employer and employee of his/her decision.

2. Appeal of Directions

The Nature of Directions

A direction is a statutory instrument that has the same effect as a regulation and carries hefty penalties for non-compliance. A health and safety officer is authorized to issue directions under subsection 145(1) to employers and employees for any contravention of the Code and the sets of OSH Regulations Footnote 1; under subsections 145(2) and (2.1) for any situation constituting a danger to employees in their work place; and generally under section 141 to carry out their different duties under the Code.

The direction affirms that the recipient of the direction is in contravention of the law and orders him to terminate the said contravention either immediately or within a specified period of time. Failure to comply with the direction is a serious offence subject to prosecution. While the recipient of the direction may have every intention of complying with the law, he may not agree with the findings of the health and safety officer and with what is required by the direction. If he disagrees with the direction, it is his right under section 146 of the Code to appeal the direction to an Appeals Officer.

The Appeal of Directions

If we consider the extraordinary powers given by the Code to health and safety officers, such as the power to enter any work place at any reasonable time, to conduct examinations, tests, inquiries, investigations and inspections or to direct the employer to conduct them, to direct the employer to produce records, to issue directions affecting the operations of a company, etc., there is definitely a need to have some mechanism to ensure that everyone affected by the actions of health and safety officers in the performance of their duties is treated fairly. Your right to appeal a direction issued under the Code by any health and safety officer is such a mechanism and is entrenched in section 146. It provides:

146.(1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing.

Under the amended Code, the aggrieved party must appeal the direction in writing to an Appeals Officer. (The Appeals Office is relying on health and safety officers to advise parties affected by a direction of the procedure to follow to file an appeal). Under subsection 146(1), the party that feels aggrieved now has 30 days to appeal the direction, as opposed to the 14 days that existed under the "old" Code. In order to establish the statutory time limit of 30 days, the time starts running on the date of the direction being issued or confirmed in writing. If the Code requires the direction to be issued in writing, then the time starts running on reception of the written document.

It is also important, when considering requesting a stay of a direction, to take note of subsection 146(2), which provides:

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.

Under this provision, directions must be complied with even if the employer, employee or trade union appeals them to the Appeals Officer. The Appeals Officer may stay a direction which is being appealed for a specified period of time by first varying the compliance date. The Appeals Officer will apply specific criteria to determine the appropriateness of granting a stay, for example: the level of risk, the measures taken in the interim, the balance of inconveniences vs. benefits etc. The health and safety officer and the affected parties will be involved in the discussions respecting the request for a stay of the direction. However, a request for a stay does not result in an automatic granting of stay.

Powers of Appeals Officers

1. Inquiry of the Appeals Officer

Subsection 146.1(1) provides for an inquiry into the appeal of a decision or direction issued by a health and safety officer in the following manner:

146.1(1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may

  • (a) vary, rescind or confirm the decision or direction; and
  • (b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1)

Paragraphs 146.1(1)(a) and (b) provide the appeals officer with the authority to change any decision or direction issued by a health and safety officer. It also gives the appeals officer the authority to issue a new direction for danger under subsections 145(2) or (2.1).

2. Decisions of Appeals Officers

The Appeals Officer is required by law to provide the employer, the employee and the trade union with a written decision on the appeal, including reasons for the decision (see also 6. Decisions). Subsection 146.1(2) provides the following:

146.1(2) The appeals officer shall provide a written decision, with reasons, and a copy of any direction to the employer, employee or trade union concerned, and the employer shall, without delay, give a copy of it to the work place committee or health and safety representative.

The issuance of decisions with reasons has been the practice of Appeals Officers in the past and therefore nothing will change as a result of this provision. Also, the employer is required, once he receives the decision, to provide it without delay to the work place committee or health and safety representative. Appeals Officers' decisions are accessible via the Canadian Center for Occupational Health and Safety (CCOHS), the Occupational Health and Safety Tribunal Canada, and its database on the Internet.

3. Powers Relative to the Procedure

Appeals Officers have been given a number of powers under the Code that will facilitate their work as a tribunal. Other than the power to issue subpoenas, the powers conferred upon Appeals Officers are powers of a general nature that are available to any quasi-judicial tribunal under the principles of natural justice and procedural fairness. These powers have been entrenched in the Code to formalize the tribunal and recognize the special status of Appeals Officers. They are as follows:

146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may:
  • a) summon and enforce the attendance of witnesses and compel them to given oral or written evidence under oath and to produce any documents and things that the officer considers necessary to decide the matter;
  • b) administer oaths and solemn affirmations;
  • c) receive and accept any evidence and information on oath, affidavit or otherwise that the officer sees fit, whether or not admissible in a court of law;
  • d) examine records and make inquiries as the officer considers necessary;
  • e) adjourn or postpone the proceeding from time to time;
  • f) abridge or extend the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence;
  • g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer’s opinion has substantially the same interest as one of the parties and could be affected by the decision;
  • h) determine the procedure to be followed, but the officer shall give an opportunity to the parties to present evidence and make submissions to the officer, and shall consider the information relating to the matter;
  • i) decide any matter without holding an oral hearing; and
  • j) order the use of a means of telecommunication that permits the parties and the officer to communicate with each other simultaneously.

The Quasi-Judicial Nature of the Appeals Process

1. An Administrative Tribunal

When hearing an appeal of an "absence of danger" decision under subsection 129(7) of the Code or of a direction as provided under section 146 of the Code, the Appeals Officer is acting as an administrative tribunal.

A tribunal is defined as "any person, board or agency that has a duty to make a decision which affects the rights, interests or privileges of individuals, which duty is imposed on it by statute Footnote 2." Administrative tribunals were created by Parliament to have appeals disposed of expeditiously and inexpensively by individuals who are specialized in the field covered by the legislation, while ensuring that this would be achieved in a manner that is procedurally fair.

However, it has been established by the Federal Court of Appeal that the appeal function of the Appeals Officer is quasi-judicial in nature. This means that, on an imaginary spectrum of processes where at the high end of the spectrum we would find the judicial courts that adjudicate the rights of individuals with their rigid rules and at the low end of the spectrum we would find administrative tribunals that decide strictly economic interests of parties with much flexibility in their rules of operation, the hearing process of appeals of decisions and directions would find itself somewhat near the judicial end of the spectrum, having been established as quasi-judicial by the Court. The decision of the Appeals Officer is quasi-judicial because it adjudicates rights and interests of parties.

Clearly then, strict procedural safeguards are required when reviewing decisions and directions under the Code. Those safeguards are found in the rules of natural justice and fairness.

2. The Rules of Natural Justice Footnote 3 and Fairness

Since the Federal Court of Appeal has established the appeal process as a quasi-judicial process, it follows that certain rules must be followed. Those rules are referred to as the principles of natural justice and fairness. The principles of natural justice were set out by courts, which impose duties on a tribunal where the legislation fails to specify those duties.

Nowadays, the distinction is blurring among the concepts of natural justice, fairness and fundamental justice under the Canadian Charter of Rights and Freedoms, since all tribunals must act fairly. The more quasi-legal a tribunal is, the more closely the rules of natural justice or fairness must be adhered to.

Subsection 146.1(1) of the Code states that the appeals officer shall inquire in a summary way. However, summary way does not mean summary justice. Thus the process must be fair.

There are two main branches of natural justice or fairness or two rules that must be followed. They are (i) the bias rule and (ii) the fair hearing rule.

The Bias Rule

There are two types of bias: actual bias and appearance of bias. The bias rule is important to the Appeals Officer, because it influences his independence as a decision-maker who operates within the confines of a Department.

Actual bias: actual bias means that the decision-maker shall have no direct financial or other material interest in the outcome of the review. Any time a decision-maker is aware that he has an "interest" in the outcome, he should immediately withdraw from the case and inform the parties of the withdrawal and the reasons for the withdrawal.

Appearance of bias: appearance of bias does not mean ignorance of the matter. It means that the conduct or the background of a decision-maker must not be such as to arouse in the mind of an ordinary objective person reasonable apprehension of bias. The absence of an appearance of bias is very important to the review process, because if the parties lose confidence in the process they are unlikely to accept the decision. In this case, the maxim "it is not sufficient that justice be done, justice must also appear to be done" definitely applies.

To satisfy the appearance of bias rule i.e. the absence of institutional bias, the Appeals Officer must act in an independent manner. In this respect, the Appeals Officer

  • is not involved in the daily administration of the Canada Labour Code;
  • does not have private meetings with any of the parties before hearings, including safety officers;
  • does not have access to Justice Canada Legal Services and contracts out his own legal services;
  • controls his/her own budget;
  • controls the administration of the Tribunal.

The Fair Hearing Rule

Under this rule, the parties to a hearing before the Appeals Officer, i.e. the appellant and the respondent, have the right to a fair hearing. The right to a fair hearing is translated into the following rights:

  • the right to reasonable notice of the place, time and subject-matter of the hearing;
  • the right to make representations before the tribunal;
  • the right to be advised of the case to be heard (full disclosure is the practice adopted by the appeals officer unless prohibited by law);
  • the right to cross-examine on the evidence (and witnesses) and request an adjournment of the hearing;
  • the right to be represented by a lawyer (and increasingly, by specialists in the field of occupational safety and health);
  • the right to be told the reasons for judgment [which is required by ss.146.1(2)].

3. Processing Appeals of Decisions and Directions

Since the Code does not specify a procedure for disposing of an appeal of a decision of "absence of danger" or an appeal of a direction, it follows that, as an administrative tribunal, the Appeals Officer is master of his own procedure, subject, of course, to the principles of natural justice and procedural fairness.

The Tribunal has created its own guide of procedures to help the parties in their applications.

4. Hearings

Three types of hearings can be carried out: the telephone conference call hearing, the written or paper hearing and the oral hearing. Electronic hearings [146.2(j)] are also being considered but have not been used to date. It should be understood that the Appeals Officer is not restricted to any one type of hearing or procedure [146.2(h)].

Under the principles of natural justice, an oral hearing is not always necessary unless a question of credibility arises. However, the Appeals Officer retains the discretion to proceed at any time with an oral hearing [146.2(i)] should it become necessary. In such cases, the health and safety officer would be requested to attend the hearing to assist the Appeals Officer in his inquiry. The audience should refer to the Tribunal Guide of Procedures.

5. Rules of Evidence

It is important at this stage to understand that when the Appeals Officer is reviewing a decision or direction issued by a health and safety officer, he is acting in the capacity of an administrative tribunal with a quasi-judicial function. An administrative tribunal is not a court and therefore the rules that apply in the courts do not apply before an administrative tribunal. In fact, the Federal Court supervises the exercise of the powers of the Appeals Officer through appeals to the Court.

Administrative tribunals in general have been established by Parliament to take advantage, in this case, of the expertise of the Appeals Officer in the field of occupational health and safety. The process before the tribunal is far more informal than before a court, far more flexible because the rules are not as rigid, and far more expeditious considering the time it would take to hear a case in a legal setting. Thus strict adherence to the rules of evidence is not required before administrative tribunals such as Appeals Officers although they should be aware of them.

There are many good reasons for not applying the technical rules of evidence before an administrative tribunal, one of which is that usually the decision-maker i.e. the Appeals Officer, is not a lawyer by training. Rather that person is an expert in the field in which he has to hear and decide specific cases. This decision-maker would be no match for a lawyer who has spent many years training to acquire the skills necessary to understand and apply the technical rules of evidence before the courts. In the end, little would be gained through this exercise since the intent in an administrative setting is to proceed expeditiously, on the one hand, and fairly, on the other.

Nonetheless, the fact that the technical rules of evidence need not apply in administrative settings does not mean that no rules apply. Hearings before the Appeals Officer must adhere to the principles of natural justice and fairness. Therefore, evidence submitted before the Appeals Officer will be considered on the basis of its relevance and the weight to be accorded to that evidence.

As a consequence, evidence that is not normally admissible in a court of law may be admissible before an administrative tribunal [146.2(c)]. For example, hearsay evidence may be admissible before an appeals officer. It is the responsibility of the appeals officer to determine the context in which the evidence has been submitted and the reliability of the evidence. The appeals officer will give it the weight that it deserves.

On the other hand, some evidence may not be admissible before the Appeals Officer. For example, privileged communications such as legal opinions are protected by law through solicitor-client privilege. Crown privileges may not be admissible if the public interest is at stake or if it is a question of national security, e.g. detection of a crime, cabinet proceedings and so on. In terms of public policy, the issue is whether the disclosure would be detrimental to the public. Information that is confidential, such as information protected by trade secrets, is also not admissible. In all those cases, the evidence may have to be rejected and the parties advised of the Appeals Officer's decision.

6. Decisions

The Appeals Officer who has heard the evidence must render a decision based on the evidence presented at the hearing and the submissions of the parties. To render a decision, the test to be applied by the Appeals Officer is "on the balance of probabilities", not "beyond reasonable doubt" as in criminal proceedings. Subsection 146.1(2) requires the Appeals Officer to issue a written decision with reasons in all cases. The decision will contain the following items:

  1. The decision will describe the problem to be resolved.
  2. It will identify the central issues to be resolved.
  3. The appeals officer will make the finding of facts.
  4. Finally, the appeals officer will state the law applicable to those facts and give his/her ruling.

The Appeals Officer's decisions are accessible through the website of the Tribunal. You may also consult them by accessing the compact disk (CD-ROM) made available by the Canadian Centre for Occupational Health and Safety and you may obtain a copy of a specific decision by contacting the Tribunal directly.

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