The Court dismissed an appeal from the decision of the judge on judicial review who had upheld a decision of the Occupational Health and Safety Council finding that the Appellant had been dismissed from his employment for insubordination and not for raising a safety concern

24. January 2006 0

Administrative law – Employment law – Termination of employment – Judicial review – Privative clauses – Procedural requirements and fairness – Bias – Compliance with legislation – Standard of review – Patent unreasonableness

Navrot v. Alberta (Occupational Health and Safety Council), [2005] A.J. No. 1569, Alberta Court of Appeal, November 16, 2005, Hunt, Berger and Ritter, JJ.A.

The Appellant had been dismissed from his position of employment with a construction company. The Appellant asserted that he was terminated for raising a safety concern, while his employer took the position that he was terminated for insubordination. Alberta’s Occupational Health and Safety Act, R.S.A. 2000, c. O-2 (the “Act”) encourages workers to report safety concerns and prohibits disciplinary action against a worker by reason of that worker acting in compliance with the Act. The Appellant had filed a complaint with an occupational health and safety officer who, after investigating the matter, determined that the Appellant had been terminated for insubordination and not for raising the issue of the wearing of safety vests creating a safety hazard. An appeal to the Occupational Health and Safety Council was dismissed, as was a judicial review of the Council’s decision.

The Court considered the correct standard of review of the Council’s decision. The reviewing judge had neglected to perform the functional and pragmatic analysis mandated by the Supreme Court, and it was not clear what standard he had selected. In performing the necessary analysis, the Court of Appeal noted that there was no privative clause in the Act. The purpose of the Act was the protection of the Health and Safety of Alberta’s workers. The issues in this case were fact intensive.

While the presence of a privative clause usually indicates a high degree of deference to the Tribunal, its absence does not necessarily denote less deference if other factors point to significant deference. Here, the expertise of the Council suggested deference, as did the purpose of the legislation and the provisions in question. Deference was also suggested because the questions were very fact-intensive and had no precedential importance. The appropriate standard of review was patent unreasonableness.

Applying this standard of review, the Court was required to consider whether the decision was “clearly irrational” or “evidently not in accordance with reason”. The Appellant first argued that the Council had erred in holding that the imminent danger provisions in the Act were not applicable and in declining to hear his argument in that regard. The evidence showed that the Appellant had not followed the procedural requirements of the Act by serving an imminent danger notice on his employer and he had never raised the issue of an imminent danger up to and including the day of his termination. Under these circumstances, the Panel’s refusal to base its decision on section 35 was not patently unreasonable.

The Appellant also argued that the Panel had erred in finding that he had been dismissed for insubordination rather than for raising a safety issue. The Council’s finding in this regard was also not patently unreasonable.

As to fairness issues, the Appellant alleged that the process was tainted because the Chair of the Panel represented employers and, as a result, there was an apprehension of bias. The Panel’s arrangement is mandated by statute (one member with employer interests, one with worker interests, and one with public interests). The decision of the Panel was unanimous in this case. Also, the Chair of the Panel was not employed by the Appellant’s former employer. In the result, there was no reasonable apprehension of bias as a result of who chaired the Panel.

The Appellant further argued that his right to fairness was breached because the investigator did not interview him before concluding that his complaint should be dismissed. The Court held that the investigator’s decision was, in a sense, preliminary, since an appeal is available from that decision to a Panel. Neither the Act nor the Regulations specified that the investigator must personally interview a Complainant. The worker has a chance to be heard by virtue of his written complaint as well as his oral submissions on an appeal before the Panel. In the result, there was no breach of the duty of fairness.

The appeal was dismissed.

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