2019 OHSTC 2

Date: 2019-01-22

File No.: 2018-37

Between:

Victor Lambe, Applicant

and

McKevitt Trucking Limited, Respondent

Indexed as: Lambe v. McKevitt Trucking Limited

Matter: Application for an extension of time to file an appeal under paragraph 146.2(f) of the Canada Labour Code

Decision: The application is granted.

Decision rendered by: Olivier Bellavigna-Ladoux, Appeals Officer

Language of decision: English

For the applicant: Himself

For the respondent: Brad Smith, Legal Counsel, Weilers Law

Citation: 2019 OHSTC 2

Reasons

[1] This is an application under paragraph 146.2(f) of the Canada Labour Code (Code) for an extension of time to file an appeal pursuant to subsection 129(7) of the Code. The applicant did not file his appeal within the 10-day time limit of subsection 129(7). The decision that he is seeking to appeal is a decision that a danger does not exist that was rendered on November 2, 2018, by Mr. Azmat Jadoon, an official delegated by the Minister of Labour (ministerial delegate).

[2] For the reasons that follow, the application is granted.

Background

[3] On September 21, 2018, the applicant exercised his right to refuse to work under section 128 of the Code. The applicant is a dock supervisor for the respondent. The applicant claims that the dock plates at his workplace are unsafe to work with and that his employer, the respondent, refuses to fix them. A dock plate is a piece of equipment used in order to bridge a gap between a delivery truck and a loading dock. Following the applicant’s work refusal, the respondent proceeded to do a work place investigation and reached a conclusion of absence of danger. On the refusal to work investigation employer report, the respondent indicated: “5 dock plates have old brake drum to keep pressure on the spring. One dock plate is out of service. The plates are still in use.” The respondent indicated that it found a repair company that has access to replacement parts and that the replacement parts were ordered.

[4] The applicant was not satisfied with the results of the respondent’s investigation and did not return to work. The workplace health and safety committee (committee) investigated the issue and agreed with the respondent’s conclusion of absence of danger. The committee’s report mentions that doors 1, 2, 5, 7, 9 and 12 need to have a weight to hold them down because the springs need adjusting and some parts need to be replaced. The committee believed that the issues described above were due to improper maintenance over the years and recommended that the respondent repairs the plate and gets a service schedule implemented.

[5] Since the applicant indicated that he was not satisfied with the committee’s findings, the respondent contacted the Labour Program and on October 29, 2018, the ministerial delegate conducted an investigation of the applicant’s work refusal at 1540 Britannia Road East, Mississauga, Ontario. The ministerial delegate established the following facts:

• The pin puller tool limits the movements that an employee has to make while completing the task;
• The action of opening and closing the dock plate are completed from a distance when using the pin puller;
• The docks in question require regular maintenance;
• The docks in question have not been maintained over a period of time; and
• The wheel rims cannot be a permanent solution for weighing the dock plates down.

[6] The ministerial delegate’s report also includes a driver’s incident report dated August 22, 2018, and a medical note dated August 23, 2018, showing that the applicant had previously been injured while lifting a dock plate, and had sought medical assistance for back issues for that reason. The report includes a document entitled Assurance of Voluntary Compliance in which the ministerial delegate noted that the respondent had not ensured that the dock plates in the work place were free of surface irregularities, specifically the usage of wheel rims to weigh the dock plates down, and asked that this be rectified by November 16, 2018. On the same document, the ministerial delegate also noted that the dock plates in the workplace were not clearly marked or tagged to indicate the maximum safe load capacity, and also asked that this be rectified by November 16, 2018. Despite these observations, the ministerial delegate concluded that there was no danger to the applicant.

[7] On November 2, 2018, the ministerial delegate hand delivered a decision that a danger does not exist to the applicant. The decision states that the applicant “may appeal this decision in writing to an appeals officer of the Occupational Health and Safety Tribunal Canada within ten (10) days after receiving this notice of the decision, pursuant to subsection 129(7) of the Code”.

[8] The applicant filed his appeal of the ministerial delegate’s decision on November 16, 2018, 3 days beyond the time limit set out in subsection 129(7) of the Code. The same day, the registrar of the Tribunal communicated with the applicant to notify him of the expiry of the deadline, and to provide him with the opportunity to make submissions for extending the deadline.

Issue

[9] The issue here is whether I should exercise my discretion under paragraph 146.2(f) of the Code to extend the 10-day time limit to file an appeal under subsection 129(7) of the Code.

Positions of Parties

[10] The applicant believed that he had ten working days to file his appeal, and states that he had been in regular contact with the Labour Program throughout his work refusal process.

[11] The respondent objected to the application, citing the decision in Alex Hoffman v. Canada (Border Services Agency), 2013 OHSTC 19 (Hoffman), where the appeals officer wrote as follows:

[12] In the respondent’s submissions: the applicant did not act with due diligence; his mistaken belief that the deadline was in working days does not show exceptional circumstances; the respondent would suffer prejudice if the deadline was extended because the applicant has failed to respect the work refusal procedure and has not attended work in over 3 months.

[13] The respondent also relied on the decision in Veilleux v. Correctional Service of Canada, 2017 OHSTC 23 (Veilleux), arguing that the applicant had not demonstrated a continued intention to appeal from the time the decision was received until the filing of the appeal.

Analysis

[14] Subsection 129(7) of the Code provides for a ten-day time limit to file an appeal of a decision that a danger does not exist. Subsection 129(7) reads as follows:

[15] Paragraph 146.2 (f) of the Code provides the appeals officer with the discretion necessary to extend the time for filing an appeal:

[16] It is uncontested that the ministerial delegate hand-delivered his decision to the applicant on November 2, 2018. The 10-day deadline to appeal that started to run on November 2, 2018, and would normally have fallen on Monday, November 12, 2018. However, the Tribunal was closed on that day because Remembrance Day fell on Sunday, November 11, 2018. As November 12, 2018, was a non-juridical day (courts and government offices are not open that day), the applicant’s 10-day deadline was extended to November 13, 2018 (Interpretation Act, RSC, 1985, c. I-21, s. 26, and 35). When the Tribunal received the applicant’s appeal on November 16, 2018, it was therefore late by three days.

[17] There is no evidence on file as to how the applicant came to understand that the deadline was to be counted in working days. Deadlines are counted in calendar days, and not working days. Subsection 129(7) of the Code and the decision of absence of danger that was handed to the applicant on November 2, 2018, do not specify that the appeal has to be filed within 10 working days. The relevant part of the ministerial delegate’s decision reads as follows:

[18] I want to acknowledge that the computation of deadlines can be a confusing exercise, particularly when a deadline falls on a holiday. I also want to acknowledge that many people, seemingly the applicant as well, can be under the false impression that deadlines like this are counted in working days. I therefore suggest that ministerial delegates should explicitly specify that the deadline to appeal their decisions must be counted in calendar days.

[19] I note that the applicant is not represented by counsel, but that he made regular attempts to receive guidance from the Labour Program to press his work refusal case. I make that remark only to indicate the general diligence with which the applicant appears to have given to his work refusal. In my view, this shows that the applicant intended to pursue this matter until it was resolved to his full satisfaction.

[20] The present case differs substantially from the cases raised by the respondent. Hoffman concerned a matter where more than 60 days had elapsed before the appeal was filed, and in Veilleux, the appeal was filed 20 days after the decision had been sent to the party. Both cases showed lackadaisical behaviour by the appellants in tending to their affairs. In the present instance, the applicant had availed himself of every escalation measure provided for under the Code and was not satisfied at each step, including after receiving the ministerial delegate’s decision, and continued to refuse to work; his belief that a danger persisted is clear. The applicant’s only error was a mistaken understanding in how the 10-day timeframe of the Code was calculated. His tardiness of 3 days, in the circumstances described above, places this matter in an altogether different realm than Hoffman or Veilleux.

[21] The ministerial delegate’s decision is clear: the applicant is not entitled under section 128 of the Code to continue to refuse to operate docks 1, 2, 5, 7, 9 and 12. The fact that the applicant has not attended work in over 3 months is a labour relations issue, not an occupational health and safety issue. I have read the respondent’s submissions carefully and I fail to see the prejudice the extension of the applicant’s time to file his appeal would cause the respondent. I believe that a genuine difference of opinion exists between the parties as to whether a danger exists in this matter or not. As such, this matter warrants a hearing in the interest of pursuing the Code’s objective of preventing accidents and injury to health arising in the course of employment.

[22] I consider that the 3-day delay to appeal, the explanations of the applicant and the reasonable diligence shown through the applicant’s actions in persisting in his work refusal should not preclude the applicant from exercising his right to appeal. I am of the view that the purpose of the Code to prevent accidents and injury to health of employees warrants the exercise of the discretion conferred upon me under paragraph 146.2(f) of the Code to extend the 10-day time limit to file an appeal under subsection 129(7) of the Code.

Decision

[23] The application for an extension of time is granted. The appeal received by the Tribunal on November 16, 2018, will proceed.

Olivier Bellavigna-Ladoux

Appeals Officer