2019 OHSTC 15

Date:  2019-06-11

Case No.: 2019-15

Between:

Canada Border Services Agency, Applicant

and

Caroline Maurice, Respondent

Indexed as: Canada Border Services Agency v. Maurice

Matter:Application for extension of the deadline to file an appeal under subsection 146(1) of the Canada Labour Code

Decision: The application is dismissed.

Decision rendered by: Ginette Brazeau, Appeals Officer

Language of decision: French

For the Applicant: Richard Fader, Senior Counsel, Labour and Employment Law Group, Department of Justice Canada

For the Respondent: David Bessette, Attorney, Bessette Avocats Inc.

Citation: 2019 OHSTC 15

Reasons

[1] This matter concerns an application to extend the deadline for filing an appeal under subsection 146(1) of the Canada Labour Code (the Code). The applicant is asking to be relieved of its failure to file an appeal, within the 30-day period prescribed by the Code, of a direction issued on March 1, 2019 by Mr. Olivier Gadoua, an official delegated by the Minister of Labour (ministerial delegate).

[2] The application is dismissed for the reasons given below.

Background

[3] On November 27, 2018, the respondent filed a complaint with the Labour Program of Employment and Social Development Canada. The complaint related to the way an investigation was conducted on allegations of violence against the respondent in June 2018. The respondent is a superintendent at the Saint-Bernard-de-Lacolle border crossing. Her employer is the Canada Border Services Agency, the applicant in this matter. The investigation into the allegations of violence was conducted by a competent person as defined under Part XX of the Canada Occupational Health and Safety Regulations (Regulations).

[4] Following receipt of the respondent’s complaint, the Labour Program assigned the ministerial delegate to investigate. The ministerial delegate’s investigation revealed that the respondent asserted she was not given the opportunity to refute or comment on the evidence collected in her absence or the preliminary conclusions of the competent person, that she was not given access to the entire final report of the competent person, and that she was not given the opportunity to address the allegations concerning violence in the workplace with the competent person.

[5] On January 11, 2019, at the end of his investigation, the ministerial delegate gave the applicant an Assurance of Voluntary Compliance form, asking for compliance with subsection 20.9(3) of the Regulations and with subsection 125(1)(z.16) of the Code. The applicant refused to sign that document, as attested by an email dated January 25, 2019.

[6] On March 1, 2019, following the applicant’s refusal to sign the Assurance of Voluntary Compliance, the ministerial delegate issued the following direction:

[Translation] In the matter of the Canada Labour Code
Part II - Occupational Health and Safety

Direction to the Canada Border Services Agency under subsection 145.(1)

On January 10, 2019 the undersigned Labour Affairs Officer carried out an investigation in the workplace operated by the Canada Border Services Agency, an employer subject to Part II of the Canada Labour Code. The said workplace is located at 400 Place d’Youville in Montréal. The workplace where the complaint originated, however, is at 501 Highway 15, St-Bernard-de-Lacolle, Québec, JOJ 1VO.

The said Labour Affairs Officer is of the opinion that the following provisions of Part II of the Canada Labour Code were contravened by the employer.

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 did not ensure that the claimant could (1) make representations concerning all evidence collected by the competent person in her absence and (2) comment on the conclusions of the competent person before the investigation report was submitted to the employer, in compliance with the principles set out in the federal court ruling Pronovost v. Canada Revenue Agency

(2017 FC 1077).

Item / Article:

No. / No:2

125.(1) (z.16) – Part II of the Canada Labour Code
20.9 (3) – Canada Occupational Health and Safety Regulations

Item / Article:

The employer refuses to transmit a redacted copy of the report made by the competent person directly to the claimant unless she makes a request for access to information to receive it. The fact that the claimant is unable to read the entire report by the competent person in a timely fashion, as soon as the employer receives the final copy of that report, constitutes a violation of the principles of natural justice.

Therefore, you are hereby directed, pursuant to subsection 145.(1)a) of Part II of the Canada Labour Code, to terminate any contravention no later than March 31, 2019.

Issued at Montréal, this 1st day of March 2019.

Olivier Gadoua
Labour Affairs Office – Occupational Health and Safety

No. ON1638

[7] The applicant filed an appeal of this direction to the Tribunal on April 2, 2019, 2 days after the 30-day deadline stipulated in the Codefor appealing a direction issued under subsection 145(1). The same day, the registrar of the Tribunal contacted the applicant to ask confirmation of the date of receipt of the direction issued by the ministerial delegate.

[8] On April 4, 2019, the applicant responded to the registrar’s message, attaching an application to extend the deadline to appeal under subsection 146.2(f) of the Code.

[9] On April 8, 2019, following receipt of the application for extension, the registrar of the Tribunal contacted the Public Service Alliance of Canada (PSAC) to inform them of the proceedings brought by the applicant and possibly involving one of their members. In a letter dated April 15, 2019, the PSAC stated its intention to serve as a respondent in the matter, and in a second letter, dated April 18, 2019, the PSAC stated that it would not take a position with regard to the application for extension filed by the applicant.

[10] After the Tribunal’s correspondence with the PSAC, the ministerial delegate contacted the Tribunal to inform it that the claimant mentioned in the direction he had issued was not an employee represented by the PSAC. On May 1, 2019, the ministerial delegate sent the Tribunal the report supporting his direction.

[11] On May 6, 2019, the Tribunal received a Notice of Appearance from Caroline Maurice, the claimant subject to the direction, according to the ministerial delegate’s report. Ms. Maurice will henceforth be identified as the respondent in this matter. On May 12, 2019, the PSAC withdrew from the file.

[12] In a letter dated May 13, 2019, the Tribunal contacted the respondent and asked her for observations about this application. The respondent did not submit any observations.

Issue

[13] The issue is whether I should exercise the discretionary power conferred on me by subsection 146.2(f) of the Code to extend the 30-day deadline for filing an appeal under subsection 146(1) of the Code.

Observations of the Applicant

[14] In support of its application for an extension of the deadline, the applicant invoked the decision in Riddell v. Correctional Service of Canada, 2014 OHSTC 9 (Riddell), in which the appellant was a day late for filing an appeal.In Riddell, the appeals officer allowed the applicant’s request for an extension.

[15] The applicant pointed out that, although the Codedoes not specify any factors to weigh in the exercise of the discretion to extend a deadline, the appeals officer in Riddell considered the following criteria:

[16] Based on those criteria, the applicant claims to have exceeded the 30-day period by only one day, due to a combination of administration errors, stemming mainly from the high number of legal disputes and the lack of a lawyer assigned to the case. The applicant also stated that once it realized its error, it immediately filed the application involved here, and believes that the one‑day delay will not cause any harm to the other party.

[17] The applicant submitted, lastly, that it does not object when similar requests are presented in appeals affecting it when the opposing party exceeds the appeal deadline by such a small margin.

Analysis

[18] Subsection 146(1) of the Code provides 30 days to appeal a direction. Subsection 146(1) reads as follows:

146(1) An employer, employee or trade union that feels aggrieved by a direction issued by the Minister under this Part may appeal the direction in writing to an appeals officer within 30 days after the date of the direction being issued or confirmed in writing.

[My underlining]

[19] Subsection 146.2(f) of the Code gives the appeals officer the discretionary power to extend the deadline for filing an appeal:

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

[20] The extension of the time for filing an appeal is not automatic, and the applicant must demonstrate that there is an exceptional reason to justify its delay (Bansfield v. Correctional Service of Canada, 2014 OHSTC 8). Although the Codedoes not specify what to take into consideration in exercising the discretionary power under subsection 146.2(f), appeals officers have, as the applicant suggests, established factors for guidance in the exercise of that discretion. These factors include the length of the delay compared to the appeal period, the explanations provided by the applicant to explain the delay, the reasonable diligence demonstrated by the applicant’s actions and the harm suffered by the other parties to the proceeding.

[21] The applicant invoked Riddell because it asserts that it had exceeded the appeal period by only one day, the same as in Riddell. I would like to note, here, that the appeal period was exceeded by two days, not just one, as the applicant alleges. It is also my opinion that this matter differs from Riddell in that it concerns the appeal of a direction under subsection 146(1) of the Code, not the appeal of a decision of absence of danger under subsection 129(7) of the Code.

[22] In an appeal under subsection 129(7), filed by an employee who believes there is a danger in his or her work place, the employee has a short deadline of ten days to appeal a determination of absence of danger to an appeals officer. In the case of an appeal under subsection 146(1), however, such as the one before us, a party who feels aggrieved by a direction has a longer deadline to appeal, namely 30 days.

[23] In Riddell, the applicant was representing himself. The appeals officer recognized Mr. Riddell’s intention to file an appeal within the ten days provided under the Codefrom the emails he exchanged with the health and safety officer. An appeals officer had also already taken into consideration an applicant’s lack of knowledge about the proceedings (Len Van Roon v. Kinonjeoshtegon First Nation, CAO-07-045).

[24] In the case before us, unlike Riddell and Len Van Roon, the applicant cannot allege its inexperience or lack of knowledge in order to be relieved of its failure to appeal within the time period stipulated by the Code.

[25] The applicant must demonstrate a clear and ongoing intention of appealing the direction received and convince me that this intention was sustained by measures taken throughout the period between receipt of the direction and the filing of the appeal (Veilleux v. Correctional Service of Canada, 2017 OHSTC 23 (Veilleux)). The applicant must also submit a reasonable explanation for its delay and prove that it demonstrated the required diligence to properly initiate the appeal (Zimmerman v. Correctional Service of Canada, 2016 OHSTC 5).

[26] It is hard for me to conclude that, throughout the 32-day period between receiving the direction and filing the appeal, the applicant had the clear and ongoing intention of appealing the direction issued on March 1, 2019. The applicant alleges a combination of administrative errors, stemming mainly from the high number of legal proceedings it is involved in and the lack of a lawyer assigned to the case. I am of the opinion that the circumstances raised by the applicant relate to the ordinary uncertainties of daily life and do not constitute particular or exceptional circumstances (Veilleux). I am therefore of the opinion that the applicant has not provided any reasonable grounds demonstrating that it acted diligently, but rather that it demonstrated negligence by leaving the case inactive for more than 30 days.

[27] The deadlines stipulated by the legislator in Part II of the Code relate to the prevention of work place accidents and injury to health. It is important that these deadlines be met in order to expeditiously administer the Code to achieve the objective of prevention. The 30-day deadline set by the legislator in subsection 146(1) is firm. Parties who ask an appeals officer to exercise the discretionary power conferred by subsection 146.2(f) of the Code must raise serious grounds to justify an extension of the deadline for initiating the proceedings. Here, the applicant cites no compelling situation to justify the use of such discretion.

[28] For the above reasons, I choose not to exercise the discretion conferred on me by subsection 146.2(f) of the Codeto extend the 30-day deadline stipulated in subsection 146(1).

Decision

[29] The application to extend the deadline is dismissed.

Ginette Brazeau
Appeals Officer

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