2014 OHSTC 12

Date: 2014-07-17

 Case No.: 2014-28

 Between:

Employment and Social Development Canada, Applicant

and

Lise Longval, Respondent

 Citation: Employment and Social Development Canada v. Longval

 Matter: Application for a stay of a direction pursuant to subsection 146(2) of the Canada Labour Code

 Decision: The application is dismissed.

 Decision rendered by: Mr. Pierre Hamel, Appeals Officer

 Decision language: French

 For the Applicant: Mr. Pierre-Marc Champagne, Counsel, Department of Justice, Labour and Employment Law Group

 For the Respondent: Herself

 Neutral citation: 2014 OHSTC 12

REASONS

[1] I received an application brought under subsection 146(2) of the Canada Labour Code ("Code") for a stay of a direction issued on June 18, 2014, by Health and Safety Officer ("HSO") Daniel Boulanger and directed against Employment and Social Development Canada (the "employer") as employer of the respondent, Ms. Lise Longval. This application was joined by a Notice of Appeal filed with the Occupational Health and Safety Tribunal Canada (the "Tribunal") on behalf of the employer by Ms. Dora Benbaruk on June 25, 2014 under subsection 146(1) of the Code.

Background

[2] The direction under appeal reads as follows:

[Translation]

IN THE MATTER OF THE CANADA LABOUR CODE

PART II — OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER

SUBSECTION 145(1)

On June 16, 2014, the undersigned health and safety officer conducted an investigation in the work place operated by Employment and Social Development Canada, being an employer subject to Part II of the Canada Labour Code, and located at Place du Portage, Phase IV, 140, Promenade du Portage, Gatineau, Québec, K1A 0G9, the said work place being sometimes known as ESDC.

The health and safety officer considers that the following provision of the Canada Labour Code, Part II has been contravened.

 No. / No: 1

125.(1)(z.16) - Part II of the Canada Labour Code,

20.9(3) - Canada Occupational Health and Safety Regulations.

The employer failed to appoint a competent person to investigate the work place violence situation alleged by Ms. Lise Longval.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than July 2, 2014.

Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time period indicated by the health and safety officer, to take steps to ensure that the contravention does not continue or re-occur.

Issued at Montreal this 18th day of June 2014.

[Signed]

Daniel Boulanger

Health and Safety Officer

ID No.: ON9279

To: Employment and Social Development Canada,

Place du Portage, Phase IV, 140, Promenade du Portage, Gatineau, Québec, K1A 0G9

[3] The hearing for the stay of the direction was held on July 3, 2014, by teleconference during which Mr. Pierre-Marc Champagne, counsel for the employer, and the respondent, Ms. Lise Longval, presented their oral arguments in respect of the application. The employer had previously sent to the Tribunal an outline of its arguments in support of its stay application. The HSO also sent to the Tribunal, by way of Ms. Denise Bourret-Deland, Acting Director, Occupational Health and Safety Division, Labour Program, his detailed report dated June 30, 2014, explaining the circumstances that led him to issue the direction. Lastly, the respondent sent two documents to the Tribunal: a letter dated December 5, 2013, in which the employer informed her she was being relieved of her duties as Human Resources Manager, and another, dated June 4, 2014, signed by the ESDC's Deputy Minister, Ian Shugart, concerning the handling of the complaint filed by the respondent under the Canada Labour Code. The teleconference participants all had these documents in hand and had familiarized themselves with them.

[4] To facilitate understanding of the paragraphs that follow, the relevant facts of this application, as stated in the detailed report, can be summarized as follows. On February 14, 2014, the respondent filed a complaint under the Canada Labour Code, Part II, and its regulations, stating that after she reported being harassed at work, she became the victim of retaliation and violence in the work place in the form of harassment, intimidation and other actions by the employer. The complaint sought the appointment of a "competent person" to conduct an investigation pursuant to subsection 20.9(3) of the Canada Occupational Health and Safety Regulations ("COHSR"). The employer claimed the complaint was not founded given that in its view the facts did not reveal any form of violence in the work place and that therefore subsection 20.9(3) of the COHSR did not apply.

[5] The first health and safety officer charged with investigating this complaint was Mr. Claude Léger. After the steps taken and discussions held between February and June 2014, the report shows that HSO Boulanger took over the matter on June 16, 2014 when Mr. Léger left for vacation. HSO Boulanger states the following on page 3 of the detailed report:

[Translation]

[…]

While the recent decision of the Occupational Health and Safety Tribunal Canada (Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2014-OHST-1) states that the employer can review the allegations of an employee who files a complaint under Part XX of the COHSR in order to determine whether the allegations meet the definition of violence set out in the Regulations, it also obligates health and safety officers to conduct a more in-depth investigation before concluding that the employer has contravened subsection 20.9(3) of the COHSR. During this investigation, the health and safety officer must first determine whether the incident to which the employee was exposed is likely to cause harm, injury or physical or psychological illness. The officer may conclude that the employer has contravened subsection 20.9(3) of the COHSR only if he deems that the situation is likely to have caused such harm.

In the case of Ms. Longval's complaint, we conducted a more in-depth investigation of the facts presented to us and believe that the incidents to which the employee was exposed meet the definition of violence set out in Part XX of the COHSR. The events include being removed from her position as a PE-06 Manager under false pretexts, being denied a conditional assignment to a PE-05 position unless she signed a resignation letter from her position, which is contrary to the rights of a surplus employee, unfounded biased statements being made by her managers with a view to damaging her reputation, management isolating her from her colleagues, being forced to endure coaching sessions with evaluation, without justification, being assigned lower-level responsibilities unrelated to her management duties, all of which caused Ms. Longval harm.

[…]

[6] In light of his conclusions, HSO Boulanger issued a direction, enjoining the employer to name a competent person to investigate the respondent's allegations under subsection 20.9(3) of the COHSR before July 2, 2014. It is this step that the employer wishes to have suspended by way of this application until such time as an appeals officer rules on the merits of the appeal, i.e. on the merits of this direction.

[7] On July 4, 2014, I informed the parties that the stay application was dismissed; the reasons for this are set out in this decision.

Analysis

[8] The power of an appeals officer to grant an application for a stay of a direction is set out in subsection 146(2) of the Code, which reads as follows:

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.

[9] This provision grants the appeals officer discretionary power to stay the effects of a direction without, however, specifying the criteria for applying such discretion. Appeals officers have therefore developed a three-part analysis grid to structure the exercise of this discretion which must be used in keeping with the overall purpose of the Code, i.e. to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which it applies (section 122.1 of the Code) and to ensure compliance with its obligations.

[10] The analysis grid's criteria are as follows:

1. The applicant must satisfy the appeals officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim;

2. The applicant must demonstrate that he would suffer significant harm if the direction is not stayed.

3. The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

Is the question to be tried serious?

[11] This first part is usually easy to satisfy and the present matter is no exception. The question raised in this appeal deals with the application and interpretation of subsection 20.9(3) of the COHSR, i.e. the employer's obligation to name a "competent person" to investigate circumstances of work place violence as defined in Part XX of the COHSR. This question has recently been the subject of decisions of appeals officers that clarify the conditions for applying this obligation, as raised by the applicant in its arguments as well as by the HSO in his detailed report. I am in agreement with the appeals officer in Via Rail Canada Inc. v. Unifor (2014 OHSTC 5), which, concerning the same question raised by the appeal requesting a stay of a direction, concluded that the question to be resolved, i.e. the scope of the obligation set out in subsection 20.9(3) of the COHSR and the conditions for its application, is serious. The determination of what constitutes work place violence within the meaning of this provision is complex and, of course, open to interpretation. At this stage of the proceedings, nothing allows me to conclude that the appeal is frivolous, vexatious or a stalling tactic.

[12] I therefore conclude that the first criterion has been met.

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

[13] Counsel for the applicant argues that the employer will suffer significant harm if this direction is not stayed. His arguments are based in large part on two recent decisions of appeals officers in Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2013 OHSTC 18, and VIA Rail Canada Inc. v. Cecile Mulhern and Unifor, 2014 OHSTC 3. Under these decisions, the obligation to appoint a competent person under the terms of subsection 20.9 (3) of the COHSR is not automatic and an allegation of work place violence made by an employee that is not resolved to the latter's satisfaction is not enough to obligate the employer to appoint such a person to conduct an investigation. On the contrary, the circumstances must establish that the employee has in fact been the victim of work place violence and the HSO must conclude as such before issuing a direction confirming contravention of subsection 20.9(3) of the COHSR and enjoining the employer to appoint a "competent person" to investigate the violence.

[14] While acknowledging that based on his detailed report, the HSO appears to have taken note of these new decisions, counsel for the applicant nevertheless submits that the HSO applied the same approach deemed faulty in the decisions cited but in a roundabout way. In his view, the HSO conducted a superficial investigation, and solely on the basis of the respondent's statements and her perception of the facts, incorrectly concluded that work place violence had occurred, when the facts, on their face, cannot justify such a conclusion. He therefore issued his direction solely on the basis of the allegations made by the respondent, who believed the problem was unresolved, and as such runs counter to the decisions to which he referred. Counsel for the applicant emphasized that the decisions cited interpret subsection 20.9(3) of the COHSR to mean that the employer has the right to determine whether work place violence occurred and further argued that the HSO wrongfully and without careful analysis, rejected the conclusions of the employer that there was no work place violence situation and that hence there was no need to appoint a competent person.

[15] I do not find these arguments in support of the stay application convincing. They seem to pertain more to the merits of the appeal than to the factors that the applicant must establish in order to have its stay application granted. I note that the decisions cited in support of the employer's claims were rendered on the merits of the appeal and not within the framework of a stay application. The undersigned rendered the decision in VIA Rail Canada Inc. and it is relevant to cite paragraphs 137 and 138:

[137] […] This leads me to understand that the purpose of the investigation is not to determine whether or not work place violence has occurred, but to review the situation that constitutes work place violence and make recommendations to the employer, in instances where an employee is not satisfied that the measures taken by the employer to deal with the work place violence that he/she has been subjected to, are adequate. I also emphasize that the duty of the “competent person” as set out in subsection 20.9(4) is to investigate “the work place violence”, a wording used throughout the section and consistent with my interpretation that a finding of work place violence is required before the application of subsection 20.9(3) is engaged.

[138] Of course, if the employer is mistaken in its assessment that a situation does not constitute work place violence, when in fact it does, the employer would be in contravention of subsection 20.9(3). A health and safety officer called to inspect the work site in case of such a disagreement would then be correct in directing the employer to comply with subsection 20.9(3) and appoint a “competent person” to carry out an investigation into the work place violence. […]

[16] While the facts in the cases cited by the employer were different, HSO Boulanger concluded that, in his opinion, the respondent had been subjected to work place violence, and on the basis of this determination, issued the direction of June 18, 2014, challenged by the employer by way of an appeal. In my view and until proven otherwise, HSO Boulanger used the approach advocated by the appeals officers in both decisions cited by the employer and did not automatically rely solely on the allegations of violence. The following excerpt from the HSO's detailed report clearly explains the reasons behind his conclusion:

[Translation]

[…]

In the case of Ms. Longval's complaint, we conducted a more in-depth investigation of the facts presented to us and believe that the incidents to which the employee was exposed meet the definition of violence set out in Part XX of the COHSR. The events include being removed from her position as a PE-06 Manager under false pretexts, being denied a conditional assignment to a PE-05 position unless she signed a resignation letter from her position, which is contrary to the rights of a surplus employee, unfounded biased statements being made by her managers with a view to damaging her reputation, management isolating her from her colleagues, being forced to endure coaching sessions with evaluation, without justification, being assigned lower-level responsibilities unrelated to her management duties, all of which caused Ms. Longval harm.

[…]

[emphasis added]

[17] After believing that the respondent was subjected to work place violence, the HSO therefore issued a direction enjoining the employer to appoint a "competent person" to investigate this work place violence situation. He stated that he reached his conclusion after conducting a "more in-depth investigation of the facts." This conclusion may be right or wrong but, at this stage of the proceedings, it is not up to me to decide. In deciding the merits of the case, it may happen that the appeals officer, hearing the matter de novo, will consider that the circumstances presented as evidence do not constitute work place violence within the meaning of Part XX of the COHSR, or deem the investigation conducted by the HSO inadequate. But this is not the purpose of the debate at this stage of the proceedings.

[18] Based on its claims, the applicant is expecting me to question the merits of the HSO's conclusions as to the existence of a work place violence situation, which is raised in the substantive appeal, and to question the legitimacy of his approach. 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. These are exceptional situations that do not apply in this case.

[19] Moreover, the applicant submits that the obligation stipulated in subsection 20.9(3) of the COHSR represents a heavy, onerous burden that is extremely harmful to the employer particularly if the direction were rescinded following an appeal decision in favour of the employer.

[20] I am aware that the investigation conducted by the "competent person" under the terms of this subsection is likely to deal with the same facts as the upcoming hearing before the appeals officer. The latter will act de novo and will have to determine whether the circumstances submitted into evidence meet the definition of work place violence and whether the direction was well founded. It is highly likely that this decision, whatever it may be, will be rendered after the "competent person" has conducted his investigation and submitted his report to the employer with recommendations, if necessary. 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. The legislator clearly intended for directions issued by HSOs to be enforceable even if such directions are appealed, knowing full well that a decision 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. In this regard, granting a stay is an exceptional measure designed to prevent a party, on whom the burden of proof rests, from suffering serious harm.

[21] Appeals Officer Jean Arteau recently dismissed an application for a stay of a direction in a very similar situation, in Via Rail Canada Inc. v. Unifor. The appeals officer concluded that the employer had not presented any convincing argument whereby the appointment of a "competent person" under subsection 20.9(3) of the COHSR, as ordered by the direction, would cause serious harm to the employer's operations, equipment or human resources. He stated as much in paragraphs 28 to 30 of his decision:

[28] I also understand that the direction will not have any impact on the applicant's operations.

[29] Concerning human resources, the only employee affected is Mr. Gendron, who is already on leave. There will be no displacement of workers or training to be given to other workers. All the other workers will continue to work as usual. Lastly, the competent person who will conduct the investigation is not from Via Rail.

[30] In the case of a stay application, it is up to the applicant to convince the appeals officer to stay a direction, which is actually an order, until a final decision is rendered. To do so, the applicant must, among other things, clearly and convincingly demonstrate that unless the direction is stayed, the company or the work place will suffer material harm. This is what the second criterion seeks to prevent.

[22] In this regard, the applicant invoked the material financial costs arising from appointing a competent person to conduct the investigation, in a context of budget constraints, and further argued that the direction made it impossible for the employer to take appropriate employee management measures. In my view, the financial harm invoked by the employer within the framework of this stay application must be assessed on the basis of the costs involved on the one hand, and the employer's size and resources on the other. 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.

[23] Furthermore, no evidence was submitted or serious argument advanced to the effect that the appointment of a competent person to investigate the situation and present recommendations to the employer, if applicable, would make it impossible for the employer to exercise its management rights. On the contrary, the case shows that the employer took the measures it considered appropriate where the respondent is concerned. The appointment of a "competent person" to investigate these measures and submit recommendations to the employer does not prevent it from exercising its management rights. 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.

[24] Therefore, in my opinion the applicant, on which the burden of proof rests, has not met the criterion of material harm to obtain a stay of the direction.

What measures will be put in place to protect the health and safety of employees or any persons granted access to the work place should the stay be granted?

[25] Given my conclusion concerning the second criterion, I do not have to rule on the third criterion for the purposes of this stay application.

Decision

[26] For these reasons, the application for a stay of the direction issued by HSO Daniel Boulanger on June 18, 2014, is dismissed.

Pierre Hamel
Appeals Officer