August 1, 2019
On July 22, 2019, an Order-in-Council was issued that set July 29, 2019, as the date that a number of changes to the Canada Labour Code (“Code”) would take effect. Among the changes were amendments to Part II of the Code and OHS appeals. The most significant amendment is that appeals under Part II will now be determined by the Canada Industrial Relations Board (“CIRB”). Before this change, the CIRB determined reprisal complaints (taken under section 133 of the Code), but appeals of decisions and directions by health and safety officers were adjudicated by Appeals Officers at the Occupational Health and Safety Tribunal Canada (“OHSTC”).
Moving federal OHS appeals from one body to another is not a seismic shift. Indeed, many of the applicable sections of the Code remain largely the same – with references now to the CIRB rather than Appeals Officers. Key matters, such as the timelines for filing appeals and the powers of the adjudicator, remain the same but the shift from the OHSTC to the CIRB does result in some notable developments for federally-regulated employers.
Before the change, employees wishing to appeal a decision of “no danger” by a health and safety officer in relation to a work refusal (pursuant to subsection 129(7) of the Code) would proceed before the OHSTC. The employee or the employer could request mediation services from the OHSTC for assistance with settlement of the matter, shortening of the appeal, and/or clarification of the issues in dispute. Such mediation services are typical in OHS appeals before many provincial boards; however, they were not available in appeals against directions (pursuant to subsection 146(1) of the Code). Those appeals were only placed on an adjudication track such that a hearing was inevitable if an appeal was filed.
That is no longer the case. Now all OHS appeals filed under the Code can be mediated and employers may wish to consider the availability of mediation when considering a response to a direction. That said, as this will be a new process in relation to appeals against directions, there are some uncertainties about mediation. Principal among those uncertainties is that Employment and Social Development Canada (“ESDC”) has not traditionally taken an active role in appeals against directions. Often, the involved health and safety officer would attend the hearing, be questioned by the Appeals Officer, cross-examined by the employer and employee/trade union, and then leave. If ESDC continues to take a hands-off approach to appeals against directions, the scope of mediation and the potential solutions that mediation could provide may be more limited.
At the OHSTC, appeals were heard by a single Appeals Officer. The Code provides for multi-person panels to hear matters. Does that mean that OHS appeals will now be presided over by a panel rather than a single adjudicator? Possibly, but it appears unlikely. While the Code provides for panels, it also now provides that a proceeding arising under Part II may be determined by the Chairperson, a Vice-Chairperson or an appointed part-time member appointed alone, and that one of these people is deemed to be a panel. In light of these provisions and the historical adjudication of OHS appeals by a single person, it seems most probable that appeals will be decided by a one-person panel.
As well, the amendments provide that an external adjudicator may be appointed by the Chair of the CIRB if she or he considers it advisable. The external adjudicator would have all the powers, duties and functions of the CIRB with respect to the matter for which they have been appointed. It is not clear what circumstances may result in the appointment of an external adjudicator. It may be that this provision was included to provide the CIRB with flexibility, in anticipation of an increased workload due to its expanded role (which also includes expanded roles in relation to employment standards under Part III of the Code), to ensure that it carries out its functions in a timely way. It may have also been included to address potential conflicts of interest that would disqualify the Chairperson, a Vice-Chairperson, or appointed member from adjudicating a particular matter. Insight may come if and when the power is used.
Like many of the relevant legislative provisions, the Notice of Appeal required to start an appeal and the application for a stay of the direction remain unchanged – except that they have been rebadged for the CIRB. However, these documents must now be sent to the CIRB instead of the OHSTC. In most cases, this is to be done electronically through the CIRB’s e-filing portal.
In addition, proceedings will now be governed by the procedural rules of the CIRB. Currently, there are no rules specific to OHS appeals. Specific rules may be coming, and employers and their representatives would be well-served by determining if any such rules have been instituted when filing an appeal and during the lifespan of that appeal.
As noted, the changes took effect on July 29, 2019. Employers should, therefore, be directing new appeals and suspension applications to the CIRB. However, whether the movement to a new adjudicative body will lead to a markedly different appeal process and experience remains to be seen.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer .