Case: Neustaedter v. Alberta (Labour Relations Board), 2024 ABCA 238 (CanLII)

Keywords: occupational health and safety investigation; Charter; right to counsel

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Synopsis:

An employee of the corporate Appellant is fatally injured at a work site. Occupational Health and Safety (“OHS”) conducts an investigation. An OHS officer attends the corporate Appellant’s office to interview individuals involved in the accident. The corporate Appellant’s counsel is present when the OHS officer arrives. The OHS officer asks the lawyer to leave. He refuses, and the interviews do not proceed. (See para. 4).

The OHS later sends letters to the corporate Appellant requesting interviews. The lawyer responds to the letters, asserting the Appellant’s employees’ Charter right to have counsel present during any OHS interview. The lawyer indicates that his clients are prepared to be interviewed, but only with counsel present. (See para. 5).

The OHS obtains orders under s. 59 of the Occupational Health and Safety Act, SA 2017, c O-2.1 (“OHSA”) (i.e., a section permitting an OHS officer “to ensure compliance…as the officer considers necessary”). The lawyer objects on the basis that the employees subject to the orders have no further information that could be lawfully requested and that OHS lacks authority to require a person to submit to an interview. (See para. 6).

After serving notice to the Appellants, an OHS officer issues administrative penalties:

    • $5,000 against the corporate Appellant for “interfering with or hindering an OHS investigation by refusing to permit witnesses to participate in a private interview without counsel”; and
    • $1,000 against each of the individual Appellants for refusing to participate in the requested interviews. (See para. 8).

The Alberta Labour Relations Board dismisses the Appellants’ appeal of the penalties. (See paras. 9-10). Following an originating application for judicial review, the Chambers Judge (Labrenz J.) concludes the Board’s decision was reasonable. (See para. 11). The Court of Appeal (Antonio, de Wit, and Feth JJ.A.) dismisses the appeal. (See para. 2).

Importance:

This case raises a fundamental question for occupational health and safety matters – namely, do Canadians have a right to counsel when being interviewed by an OHS officer? The decisions below say the answer to that question is “no”.

As to the applicable standard of review, the Court of Appeal outlined the two questions to decide:

    • whether the Chambers Judge identified the correct standard of review, and
    • whether the standard was applied correctly. (See para. 12; citing Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45–47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Lausen v. Alberta (Director of SafeRoads), 2023 ABCA 176 at para. 27).

In this case, the Court of Appeal found the question of whether OHS officers had authority to compel interviews was not a “general question of law” or one of “fundamental importance and broad applicability” with “significant legal consequences for the justice system as a whole”. For the Court, the appropriate standard of review for this question is “reasonableness”, as the Chambers Judge had found. (See para. 13; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 17, 53, 59-61; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 47).

The Court of Appeal agreed with the Alberta Labour Relations Board that the OHS officer’s reasoning was “coherent, rational and justified” as to whether the OHSA provided authority for OHS to “determine its own procedure as necessary to carry out its legislated function” and that an OHS Officer has “the power to compel a witness to attend an interview for the purpose of requesting information”. (See para. 16).

The Court of Appeal referred to Ebsworth v. Alberta (Human Resources and Employment), 2005 ABQB 976, in which Verville J. “concluded OHS had the jurisdiction to govern its own procedure and exclude counsel from interviews, and that such exclusion was not contrary to the Charter”. (See para. 21). Ultimately, in finding that Canadian employees do not have a right to counsel when being interviewed by OHS, the Court of Appeal observed:

    • there is no similar right for criminal cases (see para. 22; R v. Sinclair, 2010 SCC 35 at paras. 33-42); and
    • that information obtained for the purposes of the OHSA is not obtained for the purpose of prosecution and is expressly described as “not admissible in evidence for any purpose in a trial, public inquiry under the Fatality Inquiries Act or other proceeding” except for specific enumerated purposes under the OHSA. (See para. 23).

Might there be a further appeal to the Supreme Court of Canada to consider this question? Qui vivra verra.

Counsel for the Appellants: Peter Major, K.C. and Gurjot Sekhon (McLennan Ross LLP, Calgary)

Counsel for the Respondent, His Majesty in right of Alberta as represented by Occupational Health and Safety: Natalie Tymchuk and Erin Peters (Emery Jamieson LLP, Edmonton)

Counsel for the Respondent, Alberta Labour Relations Board: Terri Susan Zurbrigg (Alberta Labour Relations Board, Edmonton)

Counsel for the Respondent, Minister of Justice and Solicitor General of Alberta: B. M. LeClair

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