NOVA SCOTIA COURT OF APPEAL
Citation: Canadian Union of Public Employees, Local 2434
v. Port Hawkesbury (Town), 2011 NSCA 28
Docket: CA 335584
Registry: Halifax
Between:
Canadian Union of Public Employees, Local 2434
on behalf of Stephen Reynolds
Appellant
v.
Town of Port Hawkesbury
Respondent
and
Mr. Jim LeBlanc, Occupational Health and Safety Division,
Department of Labour and Workforce Development
Respondent
and
Occupational Health and Safety Appeal Panel of Nova Scotia
Respondent
and
Attorney General of Nova Scotia
Respondent
Judges: Hamilton, Fichaud and Bryson, JJ.A.
Appeal Heard: February 1, 2011, in Halifax, Nova Scotia
Held: Leave to review granted per reasons for judgment of Fichaud, J.A.; Hamilton and Bryson, JJ.A. concurring.
Counsel: Susan D. Coen, for the appellant
Wayne J. MacMillan, for the respondent Town of Port Hawkesbury
Edward Gores, Q.C. and Ryan D. Brothers for the respondent Director of Occupational Health and Safety
Reasons for judgment:
[1] Mr. Reynolds works for the Town of Port Hawkesbury. At a meeting with his supervisor and the Town’s Occupational Health and Safety Co-ordinator, he questioned the qualifications of workers who administer chemicals to the Town’s water supply. As a result, the Town suspended him the next day. Mr. Reynolds grieved under his collective agreement. He also filed a complaint with the Department of Labour that the Town had violated the Occupational Health and Safety Act, S.N.S. 1996, c. 7 (OHS Act) by disciplining him for raising a safety concern. The OHS Act says that if a labour arbitrator has “seized jurisdiction over the matter” then “the matter shall be dealt with by the arbitrator”, but otherwise the OHS complaint “shall” be determined by the OHS Officer. The arbitrator said Mr. Reynolds’ grievance was not arbitrable, because the Union had missed a time limit in the collective agreement’s grievance procedure. The OHS Officer then notified the parties that she would proceed with her investigation under the OHS Act. On successive appeals, first the OHS Director and next the OHS Panel held that the arbitrator had “seized jurisdiction”, meaning the OHS Officer had no statutory authority to proceed. So the OHS investigation was halted.
[2] The Union applies for leave to review by this Court. The issue is whether the Panel’s ruling, that any OHS investigation was unauthorized by the OHS Act, contains a reviewable error.
Background
[3] The following is from the parties’ Agreed Statement of Facts or documents incorporated by the Agreed Statement.
[4] Stephen Reynolds is a backhoe operator employed by the Town of Port Hawkesbury (Town). On April 9, 2008, he and some co-workers were at the Tamarac Water Station. They discussed water treatment procedures with their supervisor, Works Superintendent Jim MacNeil, and with the Town’s Occupational Health and Safety Co-ordinator, Wilf Ingram. In particular, they discussed the qualifications required of workers to administer chemicals to the water supply. Mr. Reynolds said those qualifications were insufficient to perform the task safely.
[5] The next day, April 10, Mr. Reynolds was summoned to the office of the Town’s Chief Administrative Officer, Mr. Colin MacDonald. Mr. MacDonald gave Mr. Reynolds a letter of suspension. The letter said:
It has been deemed that your actions and statements directed to your immediate supervisor, Works Superintendent, Jim MacNeil, during a meeting with our Occupational Health and Safety Co-ordinator, yesterday, were insubordinate and that a suspension is warranted.
Effective immediately, you are dismissed from your duties for a period of thirty (30) days. ...
[6] Mr. Reynolds then initiated two concurrent processes – under the collective agreement and under the OHS Act. I will discuss them in turn.
[7] Mr. Reynolds was in a bargaining unit represented by the Canadian Union of Public Employees, Local 2434 (Union). Articles 2.01(b) and 2.02 of the Union’s collective agreement with the Town said that the Town may discipline for just cause but that management rights “shall not be used in a discriminatory manner and any disciplinary measures shall only be taken for just cause”. On April 12, 2008 the Union filed a grievance on Mr. Reynolds’ behalf that he had been “discriminated against by being suspended because of a Health and Safety issue”, contrary to Articles 2.01(b) and 2.02.
[8] Article 12.04 of the collective agreement prescribes a four step grievance procedure, including Step 4:
If the grievance has not been settled under Step 3, the matter may be submitted to Arbitration, provided the written notice is provided within ten (10) working days of the date of the written decision set out in Step 3.
Article 12.08 says that an arbitrator cannot waive the time limits in the grievance procedure.
[9] The Union and Town met on April 14, but failed to resolve the grievance, and by a letter of April 21 the Town told the Union that “the suspension to Mr. Reynolds stands”. The Union’s representative, Mr. Davenport, apparently was ill when the letter arrived. The Union missed Step 4's ten day time limit for a submission to arbitration. The Union asked the Town to extend the deadline, but the Town refused.
[10] On June 24, 2008 the Union asked the Minister of Labour to appoint an arbitrator under s. 42(2) of the Trade Union Act, R.S.N.S. 1989, c. 475. On July 8, 2008 the Minister appointed Mr. Peter Darby.
[11] On July 24 the Town wrote to Mr. Darby, stating:
The immediate issue, at hand, remains whether this grievance should be arbitrated. We, the Town of Port Hawksbury, maintain that it should not be as we have, in accordance with the existing agreement, adhered to all of the defined requirements of the agreement, while the Union has missed their opportunity to refer the matter to arbitration.
...I believe that it should first be determined if this matter should be arbitrated. ...
[12] On February 13, 2009 Mr. Darby issued a decision that the grievance was not arbitrable. His reasons included:
1. These Reasons for Decision respond only to the preliminary issue of arbitrability that has arisen in the following circumstances. ...
3. There is no dispute that a meeting was held on April 14th, 2008 attended by Davenport and MacDonald in an attempt to resolve the grievance internally. In the Union’s view, this meeting of October 14th, 2008 was not a Step 3 meeting under Article 12.04 but an informal attempt to resolve the grievance. The Employer argues that it was a Step 3 meeting and that the Employer’s letter of October 21st, 2008 (“the Missing Letter”), was the Employer’s response at Step 3. ...
4. The “difference” between the parties that I am to respond to is whether the Employer is correct in arguing that the grievance cannot go to arbitration, ie, it is inarbitrable, without the consent of the Employer (which is refused) pursuant to Article 12.07. Why did the Employer refuse to extend the time limit for seeking arbitration? Because the Union missed the time before which it had to give written notice to the Employer of its wish to arbitrate the suspension grievance. The ten (10) working days’ period expired on May 10th, 2008 and it was not until June 19th, 2008 that the Employer received a letter, (“the Request Letter”), a copy of which I attach as Appendix “B”, from Terry Goulding, National Representative for C.U.P.E., (“Goulding”), on behalf of the Union, asking for such extension and explaining the delay. ...
7. The relevant collective agreement between the Union and the Employer states explicitly at Article 12.08 that the arbitrator has no right to waive the obligation of either party to process a grievance in accordance with Article 12. In my judgement, any discretion I might otherwise have had to waive the ten (10) working day period at Step 4 has been removed explicitly. ...
8. The real problem, unfortunately, was Davenport’s illness. As president of the Local he is expected to know the grievance and arbitration provisions of the agreement and, therefore, to know that there are time limits. It was up to him, (or to Goulding depending upon the arrangements worked out between them), to warn Goulding of his illness and if unable to call MacDonald himself about the grievance, arrange for Goulding or some other person to contact the Employer, ask what decision had been made about rescinding Reynolds’ suspension, (and thus learn of the Missing Letter, if the call was made after April 21st, 2008) or of the decision to uphold the suspension and, therefore, discover the fact that MacDonald regarded the April14th meeting as Step 3, and therefore seek an extension in time. He did not do so, with the result that the referral to arbitration is untimely.
9. I have sympathy for Reynolds. He is an innocent victim of an inadvertent mistake. However, the Employer could have but chose not to extend the time. Unfortunately, Reynolds pays the price. Had the agreement not been explicit in preventing me from waiving the time limit, I would have been sympathetic. However, I am not permitted to do so. This last fact in itself plus the use of the verb “shall render” indicates to me that the time limits under Article 12 are mandatory not discretionary. I so find.
10. For all of the foregoing reasons, I find that the grievance of Reynolds is inarbitrable, as being untimely.
[13] The merits of Mr. Reynolds’ grievance were never arbitrated.
[14] Meanwhile, Mr. Reynolds’ complaint under the OHS Act also triggered activity.
[15] It is useful here to quote s. 46 of the OHS Act, which is central to this appeal:
46 (1) An employee who complains that
(a) an employer has failed to pay wages, salary, pay or a benefit entitlement required pursuant to
(i) subsection 30(6), 33(5), 42(1), 43(4), 43(6), 43(7) or 50(8), or
(ii) the regulations; or
(b) an employer or a union has taken, or threatened to take, discriminatory action contrary to subsection 45(2), may
(c) where the employee is not subject to a collective agreement under which the employee is entitled to file a grievance, within thirty days, make a complaint in writing to an officer; or
(d) where the employee is subject to a collective agreement under which the employee is entitled to file a grievance,
(i) have the complaint dealt with by final and binding arbitration under the collective agreement, or
(ii) within thirty days, make a complaint in writing to an officer, if an arbitrator has not seized jurisdiction over the matter under the collective agreement, in which case the matter shall be dealt with by the arbitrator under the collective agreement.
(2) Where an officer receives a complaint pursuant to subsection (1), the officer shall investigate the complaint and
(a) issue an order specifying the provision of this Act or the regulations that has been contravened; or
(b) determine that there are no grounds upon which to issue an order, and so notify the complainant.
. . .
(5) Where an order or decision of an officer made pursuant to clause (2)(a) is not appealed, the decision of the officer is final and binding. 1996, c. 7, s. 46; 2009, c. 24, s. 1.
I have bolded the wording that pertains to the issues on this appeal. Section 45(2), cited by s. 46(1)(b), says:
45(2) No employer or union shall take, or threaten to take, discriminatory action against an employee because the employee has acted in compliance with this Act or the regulations or an order or direction made thereunder or has sought the enforcement of this Act or the regulations or, without limiting the generality of the foregoing, because
(a) of the participation of the employee in, or association with, a committee or the employee has sought the establishment of a committee or performed functions as a committee member;
(b) of the association of the employee with a representative or the employee has sought the selection of a representative or performed functions as a representative;
(c) the employee has refused to work pursuant to subsection 43(1);
(d) the employee has sought access to information to which the employee is entitled by this Act or the regulations, or has been assigned the role of observer pursuant to Section 42;
(e) the employee has testified or is about to testify in any proceeding or inquiry pursuant to this Act or the regulations; or
(f) the employee has given information to the committee, a representative, an officer or other person concerned with the administration of this Act or the regulations with respect to the health and safety of employees at the workplace,
unless the employer or union, as the case may be, establishes that such action is solely motivated by legitimate business reasons.
[16] On April 22, 2008 Mr. Reynolds submitted a complaint under s. 46(1) to the Occupational Health and Safety Division of the Department of Labour and Workforce Development. The Division received the complaint on April 29. The complaint said:
COMPLAINT
On Wednesday April 9, 2008 just before the start of our shift, I raised a Health and Safety concern in regards to the testing of drinking water and the injection of chemicals into the Tamarac water station. This concern was discussed with the Towns Occupational Health and Safety Officer - Wilf Ingram, co-workers Bud Williams, Jim Dorton, Paul MacNeil and in the presence of our Supervisor Mr. Jim MacNeil.
On Thursday, April 10/08 at approximately 3:15 p.m. I was called to Mr .Colin MacDonald’s office and was provided with a letter dated April 10/08 advising that my concern raised on April 9/08 was an act of insubordination towards my supervisor - Mr. Jim MacNeil.
I deny being insubordinate. Therefore I feel this action taken by Mr. Colin MacDonald on behalf of the Mayor and Council is discriminatory in violation of section 45 of the Occupational Health Safety act of Nova Scotia.
I request that I be reinstated in my position of Operator, with wages and benefits retroactive to the date of my suspension. I further request that any mention of this be removed from my record.
[17] On July 24, 2008, Ms. Gail Whalen, an Occupational Health and Safety Officer with the Department, wrote to Mr. Reynolds, copied to the Town. The letter acknowledged receipt of Mr. Reynolds’ complaint and said:
The Nova Scotia Occupational Health and Safety Act, hereinafter known as the “Act”, permits a complaint of discriminatory action based on specific circumstances, as identified above. Based on the information you have provided on the complaint intake form (copy attached), you have met the requirement to file the complaint to the Occupational Health and Safety Division within thirty (30) days.
By copy of this letter, I will ask your employer, the “Town of Port Hawkesbury”, to respond to me in writing to your comments by August 7, 2008. After receiving the employer’s written response, I will review it accordingly and additional interviews may result before a final decision is rendered. [emphasis in original]
[18] On July 29 the Town’s Mr. MacDonald informed Ms. Whalen that an arbitrator had been appointed to hear Mr. Reynolds’ grievance. On November 20, 2008 Ms. Whalen wrote to Mr. Reynolds, copied to the Town, saying:
Section 46 of the NS Occupational Health and Safety (OSH) Act states that an employee who complains that an employer or a union has taken, or threatened to take, discriminatory action may make a complaint in writing (within thirty days) to an officer, if an arbitrator has not seized jurisdiction over the matter under the employee’s collective agreement. However, once an arbitrator has seized jurisdiction, the matter will be dealt with by the arbitrator under the collective agreement.
In accordance with the OHS Act and the OHS Division’s policies and procedures, all investigation relating to your allegations of discriminatory action against your employer have been discontinued, whereby the arbitrator has seized sole jurisdiction over this matter.
[19] On February 13, 2009, Mr. Darby issued his decision, mentioned above, that the grievance was inarbitrable.
[20] On April 6, 2009 Ms. Whalen wrote to Mr. Reynolds, copied to the Town, stating:
Whereby Mr. Darby decided that he could not arbitrate this matter, it appears that you have not received any formal resolution regarding your complaint. Therefore, it is my intention as an OHS Officer within the Department of Labour and Workforce Development, to re-convene my investigation regarding your allegations of Discriminatory Action.
Please be advised, that your employer has the right to appeal this decision to Mr. Jim LeBlanc, Director, Occupational Health and Safety Division. ...
[21] On April 16, 2009, under s. 67(1) of the OHS Act, the Town appealed to the Director of the OHS Division from Ms. Whalen’s decision to reopen the investigation. On May 22, 2009 the Director overturned Ms. Whalen’s decision to proceed, and terminated the OHS investigation. The Director’s decision said:
· The matter to be determined in this appeal is not whether there is substance to the alleged discriminatory action complaint but whether it can in fact be investigated at this point.
...
· There is no disagreement that the discriminatory action complaint was filed with the officer within the thirty day time limit.
· It is also clear that under section 46(1)(d) of the Occupational Health and Safety Act that when an arbitrator seizes jurisdiction over the matter under the collective agreement the matter is to be dealt with by the arbitrator, under the collective agreement.
· The trigger for the termination of an officer’s investigation into a discriminatory action complaint under section 46(1)(d) of the Occupational Health and Safety Act is the seizure of jurisdiction by an arbitrator, irrespective of what the arbitrator decides.
· In this matter jurisdiction has been seized by an arbitrator and this event prevents any further investigation by an officer.
Determination
In accordance with Section 67(3) of the Occupational Health and Safety Act, having summarily considered the decision and information submitted, the Officer’s decision is overturned and the investigation is terminated.
[22] On May 29, 2009, under s 69(1) of the OHS Act, the Union appealed the Director’s decision to the Occupational Health and Safety Appeal Panel. The Panel heard the appeal on June 3, 2010 and issued a decision on July 30, 2010. The Panel dismissed the appeal, and confirmed that the OHS Officer had no jurisdiction under the OHS Act to proceed with an investigation. The Panel’s reasons included:
18. Section 46(1)(d) provides a unionized employee a choice between having a discriminatory complaint settled either by filing a grievance to have the matter dealt with by final and binding arbitration or by lodging a complaint with an officer. This Section of the Act is explicit, the employee must decide which route through which he wishes to pursue his compliant by selecting one of two choices. Having selected one, he cannot then pursue his complaint through the other if his first choice fails him. Mr. Reynolds opted for the grievance process, but, unfortunately, this avenue failed him. It also left the health and safety issue that he raised to his employer unresolved.
19. Should a unionized employee choose to have his complaint dealt with under the Act as a discriminatory action complaint, Section 47(1)(d)(ii) states that within thirty days, (he is to) make a complaint in writing to an officer if an arbitrator has not seized jurisdiction over the matter under the collective agreement, in which case the matter shall be dealt with by the arbitrator under the collective agreement. Mr. Darby, the Arbitrator, “seized jurisdiction” over the matter when he was duly appointed on July 8, 2008. This effectively ended the ability of the Occupational Health and Safety Division to further deal with Mr .Reynolds’ discriminatory action complaint. That the Arbitrator failed to resolve Mr. Reynolds’ complaint to Mr. Reynolds’ satisfaction, as well as Mr. Reynolds’ health and safety issue, may be unfortunate, but Mr. Darby did, in fact, render a decision. His decision favoured the employer’s position. There is no provision in the Act for the Occupational Health and Safety Division to re-visit a discriminatory action complaint for any reason once an arbitrator has been appointed and thereby, has seized jurisdiction to deal with the matter.
. . .
DECISION
21. The Appeal Panel is unanimous in its decision that Mr. Reynolds contravened the provisions of Section 46(1)(d) of the Act by filing a grievance under the Collective Agreement and by lodging a discriminatory action complaint with the Department of Labour and Workforce Development. The Officer erred in her decision to re-open Mr. Reynolds’ complaint, once the Arbitrator had made his decision that the matter was inarbitrable. The Director was correct in overturning the Officer’s decision to re-open the investigation into Mr. Reynolds’ discriminatory action complaint, and forestaling further investigation into it because an arbitrator had seized jurisdiction to deal with the matter. [Panel’s emphasis]
[23] The Union applied to this Court under s. 70 of the OHS Act for leave to review and, if leave is granted, for review of the Panel’s decision. Section 70 of the OHS Act says:
70 (1) Subject to subsection (2), an appeal panel has exclusive jurisdiction to determine all questions of
(a) law respecting this Act;
(b) fact; and
(c) mixed law and fact,
that arise in any matter before it, and a decision of an appeal panel is final and binding and not open to review except for error of law or jurisdiction.
(2) The review of a decision of an appeal panel shall be conducted
(a) by the Nova Scotia Court of Appeal, and only with leave of that Court; and
(b) with recognition that the appeal panel is established, for the purpose of this Act, as an expert body.
(3) The Director has standing as a party in a review conducted pursuant to subsection (2). 1996, c. 7, s. 70.
Issue
[24] The issue is whether the Panel made a reviewable error by upholding the Director’s decision to terminate the OHS Officer’s investigation.
Standard of Review
[25] The Union submits that the issue is truly jurisdictional, attracting correctness under Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, para. 59.
[26] In Dunsmuir, Justices LeBel and Bastarache for the majority said the following about judicial review for jurisdictional error:
[29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision‑making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21.
[30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy. As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court‑centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V‑1, at p. V‑12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent.
[31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier:
Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237‑38]
See also D. J. Mullan, Administrative Law (2001), at p. 50.
. . .
[52] The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. This does not mean, however, that the presence of a privative clause is determinative. The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction.
. . .
[57] An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard (Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26). This simply means that the analysis required is already deemed to have been performed and need not be repeated.
. . .
[59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose‑leaf), at pp. 14‑3 to 14‑6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.). That case involved the decision‑making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.
. . .
[61] Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39.
[27] From Dunsmuir, I draw the following principles on jurisdictional review:
(a) A “true question of jurisdiction” means “whether or not the tribunal had the authority to make the inquiry”, and “whether its statutory grant of power gives it the authority to decide a particular matter” (para. 59).
(b) The concept of decisional jurisdiction that preceded C.U.P.E. v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, is rejected. That former notion could stretch any error along the tribunal’s reasoning path into a jurisdictional impediment to the next analytical step. Then jurisdictional review would elasticize into full appellate scrutiny. Dunsmuir forbids that approach.
(c) So a truly jurisdictional question means – Is the door of legal authority open or shut to the tribunal’s inquiry on the matter? The decisional reasoning by a tribunal with that authority is not jurisdictional.
(d) A jurisdictional issue may arise by either an excess of legal authority or an erroneous refusal to exercise that authority:
“59 . . . The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.”
(e) Plotting the jurisdictional line between two or more competing specialized tribunals is similarly reviewed for correctness.
(f) The court’s correctness standard for a true jurisdictional issue stems from the superior court’s constitutionally protected function to uphold the application of the rule of law by statutory tribunals, as explained in cases such as Crevier v Attorney General (Québec) et al., [1981] 2 S.C.R. 220.
(g) Correctness applies to a true jurisdictional question without a standard of review analysis. But if the matter is not truly jurisdictional (and is not otherwise excepted from standard of review analysis as explained in Dunsmuir- e.g. constitutional issues), then the reviewing court must proceed to the factor-based standard of review analysis.
[28] These principles are reflected in decisions of the Supreme Court of Canada, before and after Dunsmuir, and in decisions since Dunsmuir by this court and other courts of appeal: e.g. Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, pp. 490-91; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, para. 33; Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650, paras. 88-89, 91-92, 96; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, para. 18; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, page 1087; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, para. 5; ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, para. 21; Nolan v. Kerry (Canada) Inc., [2009] 2 S.C.R. 678, paras. 32-35; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, paras. 26, 36, 104; Nova Scotia (Transportation and Infrastructure Renewal) v. Nova Scotia Government and General Employees Union, 2010 NSCA 85, paras. 12-13, and cases there cited; Homburg Canada Inc. v. Nova Scotia (Utility and Review Board), 2010 NSCA 24, para. 58; Lienaux v. Nova Scotia Barristers’ Society, 2009 NSCA 11, para. 28; Police Association of Nova Scotia Pension Plan v. Amherst (Town), 2008 NSCA 74, para. 61; Nova Scotia Turkey Producers Marketing Board v. Nova Scotia (Attorney General), 2009 NSCA 49, para. 18, leave dismissed [2009] 3 S.C.R. ix; Smyth v. Perth and Smiths Falls District Hospital, 2008 ONCA 794, paras. 16-17; Toronto Hydro-Electric System Ltd. v. Ontario (Energy Board), 2010 ONCA 284, paras. 18-24; Rolling River School Division v. Rolling River Teachers’ Association of the Manitoba Teachers’ Society, 2010 MBCA 32, para. 37; Maxim Power Corp. v. Alberta (Utilities Commission), 2010 ABCA 213, paras. 22-23; Macdonald v. Mineral Springs Hospital, 2008 ABCA 273, paras. 27-30; Border Paving Ltd. v. Alberta (Occupational Health and Safety Council), 2009 ABCA 37, paras. 15-19; Western Forest Products Inc. v. Capital (Regional District), 2009 BCCA 356, paras. 45-47.
[29] Applying those principles, in my opinion, the issue here is truly jurisdictional.
[30] Section 46(2) of the OHS Act says that the OHS Officer “shall” investigate the complaint that is received under s. 46(1), and either “issue an order” that there has been a contravention or “determine” there was no contravention. Section 46(5) says that such an order is “final and binding”, subject to any appeal. An OHS Officer has not only statutory authority, but a statutory duty, to conduct an inquiry that leads to a binding determination of a safety complaint, provided the Officer “receives [the] complaint pursuant to subsection (1)”. The Panel, in the decision under appeal, ruled that the arbitrator’s “seizure of jurisdiction” under s. 46(1)(d)(ii) deprived the OHS Officer of any statutory authority to engage an inquiry. So the Officer’s inquiry was shut down in the starting gate. The substantive issue here is whether the OHS Officer “had the authority to make the inquiry”, or whether the OHS Officer’s “grant of statutory power gives it the authority to decide” the matter. The issue is jurisdictional in the narrow sense described by Dunsmuir, para. 59.
[31] According to the Panel, the territories of the arbitrator and OHS Officer are mutually exclusive, meaning the arbitrator’s “seizure of jurisdiction” deprived the OHS Officer of any statutory authority to undertake an OHS inquiry (see paras. 18 and 21 of Panel Decision, quoted above at para. 22). So the issue on this appeal also is a question “regarding the jurisdictional lines between two or more competing specialized tribunals” that attracts correctness under Dunsmuir, para. 61.
[32] At the hearing in this court, the Town’s counsel fully adopted the submissions in the Director’s factum on standards of review. The Director made two submissions.
[33] First, the Director’s factum relies on the decision of the Alberta Court of Appeal in Border Paving, cited above, for a reasonableness standard of review:
32. In Border Paving Ltd., the Alberta Court of Appeal found that the Occupational Health and Safety Council, a body similar to the Appeal Panel, had the expertise to interpret their own statute. Therefore, a reasonableness standard of review applied to the decision.
[34] In my respectful view, the Director’s submission misses the point from Border Paving. Alberta’s Occupational Health and Safety Officer ordered the employer to implement remedial measures after a workplace infraction. The Occupational Health and Safety Council, an appeal body like Nova Scotia’s OHS Panel, dismissed the employer’s appeal, as did the Queen’s Bench on the employer’s further appeal. The employer appealed again to the Court of Appeal. Justices Hunt and Paperny for the majority said:
[17] Whether the Officer had the jurisdiction to make the Order is not, in our view, a true question of jurisdiction as described in Dunsmuir. To explain why requires a brief detour into the authority under which the Officer was acting when he made the Order. The Order itself does not refer to its underlying authority, that is, what section of the OHSA was engaged.
[18] Before the Council, the appellant referred both to subsections 9(1) and (2) of the OHSA.: A.B. E270 and E276. At the latter place, the appellant's counsel said they inferred that the Officer was using section 9(2), but did not explain why. The respondent's counsel referred to section 10(1)(c) as the basis for the Order: A.B. E264 and E303. Neither the Council nor the appeal judge opined about what section the Officer employed, although the appeal judge cited section 9. Nor does it appear to have been an issue of significance raised by the appellant.
[19] We return to this issue at para. 33. For present purposes it is sufficient to note that all three subsections permit the Officer to make certain orders when, in his opinion, work is being conducted unsafely or contrary to the legislated scheme for worker safety. This makes it apparent that the legal issue raised in this case is not a matter of true jurisdiction in the sense that the term is employed in Dunsmuir. Since the Officer was entitled to make orders if he thought that certain facts existed, a review of his order by the courts cannot question whether the legislation gave him that power, but only whether he exercised it appropriately in all the circumstances. Consequently, a standard of review analysis is necessary. (Emphasis in original)
After the standard of review analysis, the majority adopted reasonableness.
[35] In Border Paving the authority of the Alberta OHS Officer to undertake his inquiry, and decide whether there was an infraction, was not questioned. The issue was the content of the Officer’s ultimate remedial order after the inquiry was done. Clearly that issue was not “truly jurisdictional” under Dunsmuir’s principles. But that is not this case. Here the issue is whether the Nova Scotia OHS Act prevents the OHS Officer from undertaking an inquiry in the first place. That is what Dunsmuir and the other cases cited earlier define as truly jurisdictional.
[36] Second, the Director submits that the only jurisdictional question in this court is whether the tribunal under appeal - the OHS Panel - had the authority to entertain the appeal to the Panel from the Director, and the Panel clearly had that authority. The Director says that whether the actual point to be argued in this court - the authority of the OHS Officer to conduct an inquiry - involves the OHS Officer’s jurisdiction is irrelevant to the Court of Appeal’s standard of review analysis.
[37] I respectfully disagree with the Director’s submission. The substantive issue throughout has been whether the OHS Officer had jurisdiction to proceed. The OHS Officer said Yes. The Director said No. The Panel said No. The Officer, Director and Panel each ruled on that jurisdictional issue. That same jurisdictional issue now is in this court.
[38] Again, the reasons of the majority in Border Paving are instructive. The decision of the Alberta OHS Officer was appealed to the OHS Council, and from the Council to the courts. To determine whether the matter was “truly jurisdictional” for the standard of review, the Alberta Court of Appeal did not say simply that the Council had the authority to hear an appeal from the OHS Officer. Rather, Justices Hunt and Paperny considered whether the issue to be argued on the appeal - the authority of the OHS Officer to issue the order - was truly jurisdictional. They considered (para. 17) “the authority under which the Officer was acting when he made the Order”. Then they concluded (para. 19) that “[s]ince the Officer was entitled to make orders if he thought that certain facts existed”, the matter was not truly jurisdictional and a standard of review analysis was necessary.[my emphasis].
[39] This approach by the Border Paving majority is consistent with the principles of judicial review for jurisdictional error stated in Crevier, and Crevier’s line of authority. In Crevier, the issue was whether Quebec’s professional Discipline Committee had exceeded its jurisdiction. The provincial Professions Tribunal, on appeal from the Discipline Committee, held that the Discipline Committee had acted outside its authority. Provincial legislation excluded any judicial review of the Discipline Committee and Professions Tribunal. The Supreme Court of Canada (pp. 234-39) held that, because of s. 96 of what is now the Constitution Act, 1867, the Legislature could not, just by transferring the appeal authority to another statutory tribunal (the Professions Tribunal), prevent a section 96 court from considering whether the initial statutory tribunal (the Discipline Committee) had exceeded its jurisdiction.
[40] In Crevier Chief Justice Laskin adopted the reasoning from Attorney General (Quebec) v. Farrah, [1978] 2 S.C.R. 638, which applied similar principles to an equivalent internal appeal process from the provincial Transport Commission to the provincial Transport Tribunal. In MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at para. 55, Chief Justice Lamer for the majority reaffirmed Crevier’s principle.
[41] As quoted above (para. 26), in Dunsmuir, Justices LeBel and Bastarache (para. 31) cited Crevier for the proposition that: “The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96-101 of the Constitution Act, 1867.” Justices LeBel and Bastarache then quoted Chief Justice Laskin’s statement in Crevier: “It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review.”
[42] Section 70(1) of the OHS Act permits review by this court for “error of law or jurisdiction”. The ground of “jurisdiction” responds to the constitutional principles expressed in Crevier’s line of authority.
[43] The substantive issue in the Court of Appeal is whether the OHS Officer had the statutory authority to engage an inquiry. The OHS Act brands that issue as “jurisdictional”. If an arbitrator has “seized jurisdiction”, s. 46(1)(d)(ii) excludes the OHS Officer’s conterminous jurisdiction.
[44] My conclusion on the Director’s submissions is this. Whether the OHS Panel erred in its ruling that the OHS Officer had no statutory authority to engage an inquiry involves a question of true jurisdiction under both s. 70(1) and Dunsmuir. It does not matter that the Panel had its own jurisdiction to hear the appeal from the Director’s decision on that same issue.
[45] For those reasons, I will apply the correctness standard of review.
Analysis
[46] The OHS Officer’s authority turns on s. 46 of the OHS Act.
[47] All the parties agree that the statute is to be interpreted according to Driedger’s “one principle”. In R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 33, Chief Justice McLachlin summarized the principle:
33 Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Recent cases which have cited the above passage with approval include: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto‑Dominion Bank, [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, [1995] 3 S.C.R. 103, at para. 10.
Also helpful is Justice Iacobucci’s statement in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, para. 27:
27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, [1993] 2 S.C.R. 1069, at p. 1079; Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at para. 61, per Lamer C.J.)
[48] I will begin with the words of s 46(1)(b) and (d)(ii). I have quoted the awkwardly drafted s. 46 above (para. 15). The essential wording is:
An employee who complains that ... an employer ... has taken discriminatory action ... may ... where the employee is subject to the collective agreement under which the employee is entitled to file a grievance, (i) have the complaint dealt with by final and binding arbitration ... or (ii) within thirty days, make a complaint in writing to an officer, if an arbitrator has not seized jurisdiction over the matter under the collective agreement, in which case the matter shall be dealt with by the arbitrator...”
Section 46(2) says that “Where an officer receives a complaint pursuant to subsection (1), the officer shall investigate the complaint and (a) issue an order specifying [the contravention] or (b) determine that there are no grounds upon which to issue an order”.
[49] According to the Agreed Statement of Facts, Mr. Reynolds filed a complaint, dated April 22, 2008, alleging discriminatory action by the Town. The Director’s Decision says the Division received the complaint on April 29, within the thirty days stipulated by s. 46(1)(d)(ii), and the complaint was then received by the OHS Officer Ms. Whalen ( above paras. 16-17). If Ms. Whalen “receive[d] the complaint pursuant to subsection (1)” then, by s. 46(2) she “shall investigate the complaint” and either “issue an order ... or ... determine that there are no grounds” for an order. The only suggested reason that Ms. Whalen did not receive the complaint “pursuant to subsection (1)”, and the only suggested reason to abort her investigation, was that the arbitrator has “seized jurisdiction over the matter under the collective agreement” within the meaning of s. 46(1)(d)(ii).
[50] The issue of statutory interpretation is - What does “if an arbitrator has not seized jurisdiction over the matter under the collective agreement” mean in s. 46(1)(d)(ii)?
[51] I have quoted the Panel’s reasons above (para. 22). To summarize, the Panel said (para. 18) that s. 46(1)(d) gives the unionized employee a “choice between ... filing a grievance ... or by lodging a complaint with an officer” [Panel’s bolding]. The Panel said (para. 19) that “Mr. Darby, the Arbitrator, ‘seized jurisdiction’ over the matter when he was duly appointed on July 8, 2008.” Then the Panel concluded, in its paragraph 21 titled “Decision”, that “Mr. Reynolds contravened the provisions of s. 46(1)(d) of the OHS Act by filing a grievance under the Collective Agreement and by lodging a discriminatory action complaint with the Department of Labour and Workforce Development”.
[52] In my view, the Panel made two errors.
[53] I will start with the Panel’s conclusion that Mr. Reynolds “contravened” s. 46(1)(d) “by filing a grievance ... and by lodging a discriminatory complaint with the Department”.
[54] Section 46(1)(d)(ii) says that an employee, who is subject to a collective agreement, “may...make a complaint in writing to an officer, if an arbitrator has not seized jurisdiction over the matter”. According to the Panel, the arbitrator “ ‘seized jurisdiction’ over the matter when he was duly appointed on July 8, 2008". Later I will discuss whether Mr. Darby “seized jurisdiction”. At this point, I will assume that he did. Mr. Reynolds’ complaint of April 22, 2008 was received by the OHS Division on April 29, 2008, over two months before the date when, according to the Panel, the arbitrator “seized jurisdiction”. Nothing in s. 46 precludes someone who has grieved from filing an OHS complaint, before an arbitrator has seized jurisdiction. To the contrary, s. 46(1)(d) expressly entitles the employee to make a complaint before the arbitrator seizes jurisdiction. The OHS and arbitral processes become mutually exclusive only once the arbitrator “seizes jurisdiction”, not earlier when the employee files a grievance. The Panel misinterpreted s. 46(1)(d)(ii) as if it read - “An employee under a collective agreement may make a complaint to an officer if the employee has not filed a grievance”, instead of the actual statutory words “if an arbitrator has not seized jurisdiction”.
[55] I will next discuss the Panel’s conclusion that the arbitrator “ ‘seized jurisdiction’ over the matter when he was duly appointed on July 8, 2008", despite that the arbitrator later refused to hear the inarbitrable grievance.
[56] Mr. Darby’s decision on arbitrability (above para. 12) declined to hear the grievance because the attempted notice to arbitrate was outside the mandatory ten day time limit in Step 4 of the collective agreement’s grievance procedure. Step 4 (above para. 8) said that the “matter may be submitted to Arbitration, provided the written notice is provided within ten (10) working days”. Article 12.08 precluded a waiver of time limits by the arbitrator. As the arbitration notice was outside the mandatory time limit, there was no submission of Mr. Reynolds’ matter to arbitration.
[57] The Director’s factum asserts that an arbitrator’s jurisdiction begins with the submission to arbitration:
69. The meaning of seized can vary somewhat per dictionary but it basically means to “take” jurisdiction. This is supported by the discussion on jurisdiction at paragraph 1:5600, in the leading text, Canadian Labour Arbitration (Brown & Beatty) (3d ed., looseleaf ) which states; “An arbitrator’s jurisdiction to make a decision in any particular case begins with the submission to arbitration and concludes when he finally determines the matters so submitted to him”.
The passage from Brown & Beatty, cited by the Director, says:
An arbitrator’s jurisdiction to make a decision in any particular case begins with the submission to arbitration and concludes when he finally determines the matters so submitted to him, or the parties have negotiated a settlement of any outstanding issues and issued a release. (emphasis added)
[58] In Centre Hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330, at p. 1355, Justice L’Heureux-Dubé for the Court considered the stages of the grievance process, including what she termed the fourth stage - dismissal on a preliminary basis for a formal defect. Justice L’Heureux-Dubé continued, at p. 1357:
The fourth stage has also been the subject of a decision by the Quebec Court of Appeal in Collège d'enseignement général et professionnel de Dawson v. Baena (1987), 7 Q.A.C. 153, where the union had failed to sign the grievance before submitting it to arbitration. The arbitration tribunal dismissed the grievance without examining its merits on the ground that it had not been validly brought before the tribunal. Noting that the Labour Court had complete jurisdiction to order arbitration, I wrote in that case (at p. 156):
[TRANSLATION] . . . while it is true that the arbitrators had to make a ruling, they did so simply to say that there were no parties before them competent to proceed to arbitration.
In my opinion, it cannot be said that this was an arbitration. The grievance was not considered and not disposed of either on a preliminary basis or on the merits. Neither did the tribunal refuse to hear the grievance. It simply said that there was no grievance legally before the arbitrators. [emphasis added]
[59] Missing Step 4's mandatory time limit meant there was no submission of Mr. Reynolds’ matter to arbitration under the collective agreement. Mr. Reynolds’ grievance was inarbitrable because, absent a submission to arbitration, Mr. Darby had no jurisdiction. There was nothing to arbitrate and no arbitration.
[60] The Panel (para. 19) said:
That the Arbitrator failed to resolve Mr. Reynolds’ complaint to Mr. Reynolds’ satisfaction, as well as Mr. Reynolds’ health and safety issue, may be unfortunate, but Mr. Darby did, in fact, render a decision. His decision favoured the employer’s position.
[61] With respect, the only thing Mr. Darby’s “decision” did was to disclaim any jurisdiction over the matter under the collective agreement. No logical somersault can turn this into an arbitrator’s “seizure of jurisdiction over the matter under the collective agreement”. I am applying a correctness standard. If I were to apply reasonableness, in my view the Panel’s conclusion would not inhabit the set of reasonable outcomes.
[62] I acknowledge that s. 70(2)(b) [above para. 23] says the Panel “is established, for the purpose of this Act, as an expert body”. But this is a jurisdictional issue, with the implications for judicial review prescribed by Dunsmuir. The argument focussed significantly on the effect of absence of a submission to arbitration under a collective agreement, the arbitrator’s power to determine arbitrability and the meaning of “inarbitrability”. Those topics are more connected to labour relations than occupational health and safety. At the end of the day the Panel, despite its expertise, misinterpreted “an arbitrator has ... seized jurisdiction over the matter under the collective agreement” in s. 46(1)(d)(ii).
[63] Under Driedger’s approach, I will move now to the statutory context of s. 46(1)(d)(ii).
[64] The Director’s factum says:
81. Section 46(1)(d)(ii) [of] the OHSA uses the word “complaint” when referring to an employee and the word “matter” when referring to arbitration. If the OHSA required an Arbitrator to deal with the merits of the complaint, then it would have been explicitly stated. ...
...
85. In the absence of specific language indicating this requirement, the merits of a complaint need not be addressed for an Arbitrator to seize jurisdiction. ...
[65] The Director’s submission misses key wording of the statute. Section 46(1)(d)(i) says that the employee “may ... where the employee is subject to a collective agreement under which the employee is entitled to file a grievance, have the complaint dealt with by final and binding arbitration under the collective agreement”. The statute does contemplate that the arbitrator “deal with the complaint”. “Complaint” connotes the merits, as both the Town and the Director acknowledge, because ss. 46(1)(a) and (b) define the complaint as the employee’s allegation of the employer’s breach. The italicized wording assumes that the arbitrator, who has seized jurisdiction, will address those merits. Otherwise the employee’s entitlement under s. 46(1)(d)(i) would be unfulfilled by s. 46(1)(d)(ii).
[66] The scheme and objective of the OHS Act also support this conclusion.
[67] All the parties accepted that the OHS Act’s purpose is to protect the health and safety of workers. The Town’s factum put it succinctly: “The purpose of OHSA, the practical object of this legislation, is the protection of workers.” The authorities support this view: R. v. Cotton Felts Ltd., [1982] O.J. No. 178 (Q.L.)(C.A.), paras. 19, 23; Nova Scotia (Department of Environment and Labour, Occupational Health and Safety Division) v. Annapolis Valley Regional School Board, 2001 NSCA 162, para. 8; R. v. Meridian Construction Inc., 2005 NSPC 40, at para. 13; Norman A. Keith, Canadian Health and Safety Law: A Comprehensive Guide to the Statutes Policies and Case law, looseleaf, vol. 2 (Aurora, Ontario: Canada Law Book, 2010) atpara. 8:10. The enforcement of time limits in a collective agreement’s grievance procedure to preclude arbitration, though relevant to the Trade Union Act’s objective, yields to workplace safety as an objective of the OHS Act’s complaint process.
[68] Consistent with the objective of workplace safety, s. 46 of the OHS Act prescribes a determination of the complaint’s merits. There are three scenarios. (1) The employee who is not subject to a collective agreement “may” file an OHS complaint within thirty days, and then the OHS Officer “shall” investigate and determine the complaint’s merits one way or the other [ ss. 46(1)(c) and 46(2)]. (2) The employee under a collective agreement “may ... have the complaint [meaning the merits] dealt with by final and binding arbitration under the collective agreement” [ s. 46(1)(d)(i)]. Clearly that arbitrator will have seized jurisdiction. Or (3) that a unionized employee may file an OHS complaint within thirty days and, unless the arbitrator has seized jurisdiction, the OHS Officer “shall” investigate and determine the merits.
[69] To achieve the legislative objective of workplace safety, the OHS Act channels complaints to a destination where it is determined whether or not there is merit to the safety concern. The safety concern, once raised with a timely written notice to the OHS Division, is not left to dangle until another employee or member of the public may be at risk. Yet the result of the Panel’s decision here would be that the merits of neither the grievance nor the OHS complaint, which was properly lodged with the Division, would be addressed by anyone.
[70] In summary, the clear words of s. 46(1)(d)(ii), its statutory context and the legislative scheme and objective of the OHS Act support the conclusion that a rejection of arbitrability, because there was no submission to arbitration under the collective agreement, is not within the meaning of “an arbitrator has ... seized jurisdiction over the matter under the collective agreement” in s. 46(1)(d)(ii). I would set aside the Panel’s decision, and reinstate the OHS Officer’s decision to proceed with her investigation.
Conclusion
[71] I would grant leave to review, allow the review, as it is termed by s. 70(2), and set aside the Panel’s decision that terminated the OHS Officer’s investigation. I would order the Town to pay costs of $ 2,000 plus reasonable disbursements to the Union for the proceeding in the Court of Appeal.
Fichaud, J.A.
Concurred:
Hamilton, J.A.
Bryson J.A.