By Ryan Conlin, Jeremy Schwartz and Haadi Malik
One of the more legally confusing aspects of the appeal regime under the Occupational Health and Safety Act (“OHSA”) is the difference between a “order” and a “requirement” of a Ministry of Labour, Immigration, Training and Skills Development (“Ministry”) Inspector.
An order is typically issued in a “Field Visit Report” provided by the Inspector and is specifically characterized as an Order which the employer (and certain other parties) have the right to appeal to the Ontario Labour Relations Board (“Board”). A “requirement” is not formally issued as an Order and is often listed in the narrative of a Field Visit Report as a directive for the employer to do certain specific things.
In two recent cases before the Board, Cementation Canada Inc., Applicant v A Director under the Occupational Health and Safety Act, 2023 CanLII 10016 (“Cementation Canada”) and Miller Group Kakabeka MDMC, Applicant v A Director under the Occupational Health and Safety Act, 2023 CanLII 34317 (“Miller”), the Board directly confronted the issue of whether it had the jurisdiction to hear an appeal of a “requirement” issued by an Inspector to produce certain documentation in connection with a Ministry investigation.
Cementation Canada
In the Cementation Canada case, the Employer applied to the Board to have a requirement in an Inspector’s Field Visit Report to produce documents quashed, rescinded, and set aside. The Employer pointed to section 61(5) of the OHSA which essentially states that an appeal lies from any order or “decision” made by an Inspector under auspices of the legislation.
It was argued that the requirement at issue was clearly a decision made under the OHSA and was thus subject to appeal. The Board’s attention was directed to specific cases where an employer’s appeal of similar requirements proceeded on the merits without a jurisdictional challenge (see, for example, The Corporation of the Municipality of Chatham-Kent v A Director under the Occupational Health and Safety Act, 2017 CanLII 74130 (ON LRB), Aecon Industrial, a Division of Aecon Construction Group Inc., 2016 CanLII 67511 (ON LRB); Hydro One Networks Inc. v. Power Workers’ Union, 2013 CarswellOnt 16276.)
In response, the Ministry argued that pursuant to the Board’s jurisprudence, a requirement is not an order or decision of an inspector under the Act and, therefore, there was no jurisdiction under the OHSA for the Board to hear the application. It was argued that a decision arises only after an Inspector has completed the investigation. To find otherwise, the Ministry argued, would allow employers to use appeals to obstruct investigations and would have a “catastrophic” effect on an Inspector’s ability to enforce the legislation.
The OLRB accepted the Ministry’s position and dismissed the appeal for lack of jurisdiction. It summarily dismissed the cases where appeals of similar requirements proceeded in the past on the basis that the issue of jurisdiction had not been argued by anyone in those earlier cases.
Miller Group
In the Miller case, the Employer similarly requested that the Board rescind a direction made by a Ministry Inspector to produce documents. It was argued that Cementation Canada was wrongly decided as the Board had read in a requirement into the OHSA to limit jurisdiction to appeal requirements which were “final” decisions of an Inspector.
The Employer pointed out that the Ministry could resist a decision from being challenged simply by asserting the investigation was on-going. Most importantly from our perspective, the Employer argued that an appeal of an order to produce documents could proceed if the Inspector characterized the demand as an “order”, but no appeal rights exist where the exact same demand is characterized as a “requirement”.
The Ministry reiterated the same arguments that it made in Cementation Canada, that there was no jurisdiction to appeal a requirement which was made as part of an on-going investigation.
The Board, citing the reasoning in Cementation Canada, similarly concluded that it did not have jurisdiction to rescind the requirement as it was not a final decision. The Board rejected the Employer’s argument that requirements to produce documents by inspectors were indeed decisions subject to appeal under the OHSA and found this would lead to the conclusion that the exercise of every single power of an Inspector provided for under the OHSA could be subject to an appeal. The Board further stated that such a finding would result in the Board having an oversight function that is beyond the scope of its role vis-à-vis the regime established under the OHSA.
In our view, considering whether an Inspector’s “requirement” was a “final” decision conflates incompatible caselaw related to interlocutory decisions and decisions made by administrative decision makers, with our distinct circumstances.
When Ministry Inspectors issue decisions in complaints under the Employment Standards Act, 2000 (ESA), for example, those are written, quasi-judicial decisions with reasons that set out the Inspector’s determination as to whether a party has complied with the ESA. By contrast – Ministry Inspectors do not issue decisions of that ilk under the OHSA. They issue Field Visit Reports which sometimes append orders, and which sometimes contain “requirements” in the narrative section.
Perhaps a better starting point for this analysis under the OHSA, would be to determine what is a “decision” of a Ministry Inspector. If an appealable “decision” and “order” are different things, and a “decision” to issue a “requirement” is not an example of an appealable “decision”, what exactly constitutes an appealable “decision” by a Ministry Inspector under the OHSA?
Implications of these Decisions
Interestingly, the Board did not address in detail the discretion exercised by the Inspector to characterize a production demand as an “order” or “requirement”. It is our view that it is a denial of natural justice for an Inspector to unilaterally be able to make a decision about how to characterize a demand for documents which shields the Inspector’s decisions from legal scrutiny from a tribunal that literally steps into the shoes of an Inspector on appeals.
Critically, section 66(1)(b) of the OHSA makes it an offence to fail to comply with an “order” or “requirement” of an Inspector. This means that an employer (or any other party for that matter) could be subject to prosecution for failing to comply with a requirement, simply because an Inspector elected (for any reason and without explanation) to issue the demand as a “requirement” instead of an “order”, thus shielding the demand from the appeal provisions in the OHSA.
Understandably, Ministry Inspectors have vast regulatory inspection powers to allow them to protect worker safety. However, the Legislature has recognized that there needs to be a “trade off” to protect workplace parties from unlawful decisions made by Inspectors. We respectfully disagree with the Board’s suggestion, that this penal liability is irrelevant to this issue on the basis that the accused could raise any defence it wished in the context of the prosecution proceedings.
There is some merit to the Board’s policy concern that investigations could be obstructed by employers filing meritless appeals. However, the Board has processes to efficiently dismiss appeals clearly devoid of legal merit. An employer cannot simply refuse to comply with a statutory compulsion to produce documents and expect to succeed. It must articulate a legal basis for the refusal (i.e., privilege or constitutional issues). Moreover, an employer that brings a meritless appeal does so at great peril, since the Board’s appeal process only enables the staying of decisions and orders in the clearest cases and where worker safety is not imperilled. Employers that fail to comply, in the absence of a stay pending the appeal, risk being charged with an offence.
Clearly, meritless appeals filed to delay or obstruct the investigation can and should be summarily dismissed. Thus, the Board’s policy concern is, respectfully, overstated.
We have noticed a recent trend in Canada towards making it more difficult for employers to resist the use of regulatory inspection powers in gathering evidence for prosecutions (e.g., Workers’ Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd., 2020 BCCA 365) The administrative appeal process under the OHSA is an important safeguard to allow workplace parties to challenge decisions of Inspectors they believe are legally wrong. Unfortunately, where an Inspector chooses to characterize a legal demand to produce documents as a “requirement”, an employer’s choice appears to be to comply, or risk committing an offence and then take its chances in court.
For more information, please contact:
Ryan Conlin at [email protected] or +1416-862-2566
Jeremy D. Schwartz at [email protected] or +1416-862-7011
Haadi Malik at [email protected] or +1416-849-2552
