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To appeal or not to appeal - that is the question

Employers, OHS professionals and senior management are often challenged when an OHS regulator issues an order or, federally, a direction. This enforcement mechanism alleges contraventions of the legislation, regulations, or in Alberta, the OHS Code.

The workplace stakeholder that receives the order or direction, usually the employer, is accessed in the orders and directions of a legal contravention. In other words, an OHS inspector has come into the employer’s workplace, has identified one or more contraventions of the legal standards set out in the statute, regulations, or OHS Code, and recorded the same in writing. An employer is then ordered to address the non-conformance with the OHS law. In Ontario alone there are literally hundreds of thousands of orders issued every year by OHS inspectors.  

The question then becomes, what should an employer, OHS professional or senior manager do when they receive orders? Most clients tell me they just comply. Many employers feel they have no choice but to comply. However, employers do have a right of appeal and they must deal with this issue. The decision to appeal orders, as a result of a recent court decision, is more important than ever for employers.

On the one hand, employers often want to just “make the OHS inspector happy”, comply with the orders and send the inspector on his or her way as soon as possible. Even though the orders often advise employers of their right to appeal, within the prescribed period of time set out in the applicable OHS law, employers rarely assert their right to challenge the orders in an appeal. Apart from simply trying to get along and keep the OHS regulator happy, employers may also, if they are aware of their right to appeal, choose not to “rock the boat” of their relationship with the OHS inspector or be concerned about the time, aggravation, and legal costs associated with initiating the appeal of an order.

On the other hand, since OHS inspectors are not perfect, they may impose unreasonable demands on employers in their orders. Sometimes they make mistakes and are simply wrong in their assessment of the application of a particular provision of OHS law. There have always been good reasons to consider appealing orders that have a material impact on the business and management of health and safety for an employer.

Recent decision

As a result of the recent decision by Justice Childs in R. v. K&S Forming, there is further reason to consider appealing an order issued by an OHS regulator. The effect of that court decision, which is reviewed in detail below, is that if an employer receives an order identifying a contravention of an OHS law, and does not appeal, then they may be deemed to have accepted all of the information contained in the order, including the status of the party to whom it is issued and the content of the OHS law contravention. In other words, failure to appeal the order will be taken as an admission of a legal contravention and, for the purposes of a later prosecution, proof of all of the elements in the order issued by the OHS regulator.

In the case of K& S Forming, Justice Childs considered an evidentiary objection over the course of a prosecution under Ontario’s OHS law. The employer employed a worker who fell and broke his arm on a construction project. One of the material issues in the prosecution was whether or not a co-defendant was a “constructor” as identified by Ontario’s OHS law. In the course of the trial, the Ministry of Labour prosecutor attempted to establish that the co-defendant was a constructor, by admission into evidence the order issued by the Ministry of Labour inspector. The co-defendants objected and this required an evidentiary ruling by Justice Childs.

Justice Childs held, after receiving written submissions and reserving his decision for several months, that the Ministry of Labour order, could be admitted into evidence. The result was that the orders, which were not appealed or challenged by the employer, were accepted into evidence to prove the case against the defendants at trial. Justice Childs made the point that the contents of a Ministry of Labour inspector’s order should be seen as prima facie evidence of the contents of the orders. In other words, evidence may be called at trial to rebut or challenge the contents of the Ministry of Labour’s orders. However, he held that an outright evidentiary objection or “collateral attack” of the order itself may not be undertaken at trial. This is based on a decision of the Supreme Court of Canada where a company had failed to appeal an environmental order and, when prosecuted for failure to comply, tried to argue that the substance of the order was inappropriate and invalid.

Implications

The result of the K& S Forming ruling has very important implications for employers in Ontario and across Canada. The lessons learned from this decision for an employer, health and safety advisors, legal advisors, and human resource managers, are as follows:

(i)  When an order or direction is issued by an OHS regulator, the employer must clearly understand that this is an allegation that there is a contravention of OHS law;

(ii)  The right to appeal the order or direction is an important right that employers should not overlook. A decision needs to be made whether or not to accept that there is a contravention of OHS law, or to appeal the order or direction. There is no other choice to be made;

(iii) When orders relate to an incident that poses high risk of prosecution, namely a critical injury or fatality, employers should review orders even more carefully with a view to appealing them;

(iv) The K&S Forming decision suggests that OHS risk management must now include appealing orders in cases where there is material risk of enforcement of OHS laws by prosecution.

Although this article does not deal with the procedures involved in appealing orders, it is a reasonably straightforward process and it is not particularly expensive to obtain legal counsel to appeal an order. However, strict time limits for commencing an appeal (in Ontario it’s 30 days) are imposed by the administrative body which hears the appeals.

It is important to get competent, specialized legal advice, as soon as an employer receives an order, to assist with the decision of whether or not to appeal the order. Failure to address the importance of orders and ignore the consequences of the K&S Forming decision put employers at higher risk of being convicted of an offence under OHS laws.

Norm Keith leads the national OHS practice at Gowling, Lafleur Henderson (Gowlings). You can reach him at (866) 862-5787 ext. 85699, or by email at Norm.Keith@gowlings.com.

Mari-Len De Guzman

Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.
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