Right to appeal

Subsection 129(7) of the Canada Labour Code, Part II, gives the right to appeal a decision of no danger made by an official delegated by the Minister of Labour.

Section 146 of Part II gives the right to appeal directions issued by an official delegated by the Minister of Labour.

Who may appeal?

If you are an employee (or a person designated by the employee) who refused to work because you believed there was a danger and you disagree with the official delegated by the Minister of Labour’s decision of no danger, you may appeal that decision.

If you are an employer, employee or union that feels aggrieved by a direction issued by an official delegated by the Minister of Labour, you may appeal that direction.

What is the time limit to appeal?

In the case of an official delegated by the Minister of Labour’s decision of absence of danger, you have 10 calendar days after receiving the written decision to appeal that decision. Remember, even if you appeal the decision, you are not entitled to continue to refuse to work.

In the case of a direction issued by an official delegated by the Minister of Labour, you have 30 calendar days from the date that the direction is issued or confirmed in writing to appeal that direction. Remember, even if you appeal the direction, you must still comply with it until the Appeals Officer varies, confirms or rescinds it. However, pursuant to subsection 146(2) of Part II, the Appeals Officer may order a stay of the direction, if the employer, employee or trade union requests it.

How to appeal?

Effective July 29, 2019, appeals that were previously filed with with the Occupational Health and Safety Tribunal Canada must now be filed with the Canada Industrial Relations Board.

For more information visit the Canada Industrial Relations Board.

Who is the appeals officer?

The Appeals Officer is a qualified person designated by the Minister of Labour under subsection 145.1(1) of Part II of the Canada Labour Code, to hear all appeals relative to decisions of absence of danger or to directions issued by an official delegated by the Minister of Labour.

The Appeals Officer acts as an administrative tribunal and has quasi-judicial powers. Master of his or her own procedure, the Appeals Officer hears all appeals in an impartial and independent manner, in accordance with the principles of natural justice and fairness.

What is the appeals officer’s role?

The appeals officer inquires, in a summary way and without delay, into the circumstances of decisions or directions, as provided by subsection 146.1(1) of Part II.

Under this provision, the appeals officer may vary, rescind or confirm a decision or direction, or issue a new direction if he or she decides that there is a danger or a contravention.

What are the appeals officer’s powers?

Pursuant to section 145.1 of Part II, the Appeals Officer has all the powers, duties and immunity of an official delegated by the Minister of Labour. In regards to the application of section 146, the Appeals Officer has the power to issue a direction for a contravention to the Code.

Pursuant to section 146.2 of Part II, the Appeals Officer may summon witnesses and compel them to produce documents; administer oaths; adjourn or postpone the proceeding; abridge or extend time limits; make a party to the proceeding any person or group that could be affected by the decision; determine the procedure to be followed; decide any matter without holding an oral hearing; and order the use of a means of communication.

How to prepare for the hearing?

The parties must ensure that they bring to the hearing all the documents relevant to the case. If they plan to introduce new documents during the hearing, they should be able to immediately provide copies to the Appeals Officer and the other parties. Parties who wish to call witnesses may request that the Appeals Officer issue a summons (subpoena) to the witnesses to appear and compel them to produce relevant documents. Parties should give reasons for their request and furnish all the information needed to identify witnesses and documents.

How is the hearing held?

The Appeals Officer may hold formal or informal hearings. Usually, hearings follow this procedure:

• the Appeals Officer ensures that the parties have all the documentation
• the Appeals Officer invites anyone who wishes to make a statement to do so before hearing the witnesses
• the Appeals Officer asks the official delegated by the Minister of Labour to explain the circumstances that led to the absence of danger decision or the direction under appeal
• the Appeals Officer hears the applicant's witnesses, then those of the other interested parties
• the Appeals Officer may ask the witnesses to take an oath or make a solemn affirmation
• witnesses may be cross-examined by the opposing party
• after the witnesses have been heard, the parties summarize their position and argumentation
• the hearing is closed

Appeals Officer's decision

As stipulated by subsection 146.1(2) of Part II, the Appeals Officer provides a written decision, with reasons, and a copy of any ensuing direction, to the employer, employee or trade union. The Appeals Officer sends copies of the decision to all parties. Appeals Officer Decisions are final and binding. However, they may be subject to judicial review by the Federal Court. For more information you can refer to the Occupational Health and Safety Tribunal Canada Office Guide of Procedures.

Summons

N.B. This document is not official and is not binding to an Appeals Officer. It is simply to provide general information to employees, unions and employers so that they may have a better understanding of the process of the Occupational Health and Safety Tribunal Canada (Tribunal). The Appeals Officer hearing a case may vary the procedures where he finds it appropriate.

Pursuant to section 146.2 of the Canada Labour Code, Part II, an Appeals Officer may summon witnesses and compel them to produce documents. If you wish to summon witnesses to give evidence or produce documents at a hearing and believe that these persons will not appear unless they receive a summons, you may obtain one by writing or calling the Tribunal.

You must provide the following information:

• the file number assigned to the case by the Appeals Office
• the hearing dates
• your name, address and telephone and fax numbers and, if you are acting as an agent or legal counsel for someone else, the name, address and telephone and fax numbers of the party you represent
• the name, address and telephone and fax numbers of the persons you wish to summon
• a description of any documents you wish the persons to bring with them to the hearing

The Tribunal will prepare the summons, but you must personally deliver the document to the witness, or have it delivered by a bailiff.

Any employee who has been summoned by an appeals officer to appear at a hearing and who attends, is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work (s. 146.5 of Part II).