Neustaedter v Alberta (Labour Relations Board), 2024 ABCA 238 is an Alberta Court of Appeal decision where the Court found that fines imposed a company and individual employees by OHS were reasonable and justifiable.
This decision is important because there are not many Alberta Court of Appeal decisions considering OH&S penalties.
Facts
The following were the facts summarized by the ABKB:
- In October of 2019, an employee of Volker Stevin Contracting Ltd. was fatally injured at a worksite in Airdrie Alberta
- An Occupational Health and Safety officer came to Volker’s office to interview an employee who was involved in the accident and a safety representative. Volker’s lawyer was present at the time, and refused to leave when the OHS officer requested it. The officer did not conduct the interview as a result
- OHS later sent letters to Volker requesting interviews with four employees alone in order to collect information relating to the accident
- The lawyer for Volker responded to the letter, claiming the employee had a Charter right to have counsel present during interviews
- OHS escalated, issuing orders under Section 59 of the Alberta Occupational Health and Safety Act which required the four employees to attend video interviews. The lawyer objected again, claiming they had no more information that could be lawfully requested and that OHS did not have authority to require attendance at an interview
- OHS issued an administrative penalty against Volker of $5,000 for interfering with the OHS investigation in breach of Section 54 of the OHSA and individual penalties of $1,000 against each of the employees under Section 53(2) and the Section 59 orders
- Volker and the employees appealed to the Alberta Labour Relations Board, which was dismissed. They then filed for judicial review in Alberta Court of King’s Bench, and that was dismissed as well
- Volker appealed to the Court of Appeal, with arguments that the ALRB had interpreted the OHS legislation incorrectly, applied the wrong standard of review, and failed to properly consider the Charter.
Analysis / Conclusion
The ABCA dismissed the appeal. The following were some key findings:
- The ALRB was correct to adopt a deferential standard of the OHS officer’s interpretation of OHS investigative authority
- The OHS officers’ conclusion that OHS had authority to compel witnesses to attend interviews to obtain statements for the purposes of the OHSA was “coherent, rational and justified”
The appellants argued that they had not failed to provide information, only failed to attend interviews which (they argued) did not breach the OHSA. The ABCA rejected this argument and found the OHS officer’s conclusion that failing to attend interviews to provide information breached the OHSA had been reasonable. The ABCA noted as follows regarding this argument:
[17] […] At paragraph 105 of the Substantive Decision, the chambers judge held the appellant’s interpretation “would render the OHSA essentially toothless. If a request for information regarding a workplace incident can be ignored with impunity, OHS’s mandate to protect worker safety would be rendered nugatory. This cannot have been the Legislature’s intention.” We agree and extend this reasoning to the argument before us.
The appellants argued that requiring them to attend interviews without legal counsel is contrary to their Section 7 Charter right against self-recrimination. The ABCA rejected this argument too, noting that even in criminal cases someone can be interviewed without counsel present, and section 53(2) interviews are only for the purposes of OHSA, including preventing work site incidents and injuries, and not for prosecution.
My Take
This case provides some clarification and confirmation on the investigative powers of Alberta OHS officers. Most of the overall result is not surprising to me, because as noted at para 17, if Volker’s interpretation of OHS’ rights were accurate it’s hard to imagine how the OHS would be able to properly conduct an investigation and determine what happened.
The point about the employer and employee not having a right to have legal counsel present for these OHS interviews is interesting but a bit concerning to me. Part of the reasoning is that in criminal contexts a person does not have the right to have legal counsel present, but that does seem quite different because a criminally accused person’s right against self-recrimination allows them to refuse to speak, which does not appear to be permitted under the OHSA. The Court of Appeal noted that the interviews are only for OHSA and not prosecution, but the OHSA itself has been described as containing quasi-criminal penalties.
In any event, this is an interesting case with some important OHSA guidance for Alberta employers and employees.
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