Administrative law – Decisions of administrative tribunals – Occupational Health and Safety Officer – Judicial review – Standard of review – Correctness – Compliance with legislation – Discrimination – Labour relations – Working conditions – Workers compensation – Worker – definition – Employer – definition
Potash Corp. of Saskatchewan Inc. v. Oppenlander,  S.J. No. 202, Saskatchewan Court of Queen’s Bench, March 23, 2009, G.M. Currie J.
Harry Oppenlander alleged that Potash Corporation of Saskatchewan Inc. took discriminatory action against him contrary to s. 27 of the Occupational Health and Safety Act, 1993, S.S. 1993, c. O-1.1. Section 27 applied as between an “employer” and a “worker”. Potash Corporation was an “employer” under the Act, and Mr. Oppenlander was a “worker” under the Act, but he was not in the service of Potash Corporation. He was in the service of a different corporation. Two questions arose before the Court:
(a) whether Potash Corporation could have been Mr. Oppenlander’s “employer” within the meaning of s. 27, even though Mr. Oppenlander was not in the service of Potash Corporation; and
(b) whether the provisions of s. 27 of the Act applied as between any employer and any worker, such as Potash Corporation and Mr. Oppenlander, or only between an employer and a worker who is in the service of that employer.
The circumstances in which the above issues arose were as follows:
Potash Corporation operated a Potash mine in Allan, Saskatchewan. It retained an engineering firm, AMEC, to hire a contractor to work on the mine. In the summer of 2006, Balzer’s Canada Inc. was awarded the contract. Through his union, Mr. Oppenlander was hired by Balzer’s in late June 2006 to work in the mine. Mr. Oppenlander was concerned about being exposed to cigarette smoke on the worksite even though a policy restricting cigarette smoking was in place. Motivated by this concern, Mr. Oppenlander contacted a mine inspector, the Department of Labour, and the AMEC safety representative about enforcement of the smoking policy. Shortly thereafter, he received a telephone call from his union, advising him that he had been banned from the worksite by the Potash Corporation.
Mr. Oppenlander telephoned Potash Corporation respecting the banning and was advised that the Corporation had not been aware of any ban and had not imposed it. That same day, Balzer retracted its letter, reinstated its invitation to Mr. Oppenlander to work on the worksite and apologized for the letter.
Despite the retraction, Mr. Oppenlander filed two complaints with an occupational health office alleging that he had been exposed to second hand smoke on numerous occasions contrary to section 77 of the Occupational Health and Safety Regulations and that Potash Corporation had taken discriminatory action against him contrary to s. 27 of the Occupational Health and Safety Act by banning him from its worksite because he had raised a health and safety issue.
On the second complaint, the officer determined that regardless of who had banned Mr. Oppenlander from the worksite, Potash Corporation could not be found to have taken discriminatory action against him within the meaning of the Act because Mr. Oppenlander was not an employee of Potash Corporation.
Mr. Oppenlander appealed the decision to the director pursuant to s. 49 of the Act. The director affirmed the decision of the officer for the same reason. The director went on to order an investigation into whether Balzer’s, who was Mr. Oppenlander’s employer, had engaged in discriminatory action against him.
Under s. 50 of the Act, Mr. Oppenlander appealed the decision of the director to an adjudicator designated under s. 48 of the Act. The adjudicator heard evidence in connection with both complaints filed by Mr. Oppenlander and issued an award in which he allowed Mr. Oppenlander’s appeal to the extent of concluding that if it was Potash Corporation who had banned Mr. Oppenlander, then it was his employer within the meaning of s. 27 of the Act and thus could be found to have taken discriminatory action against him and further investigation was needed in order to determine whether it was Potash Corporation that banned Mr. Oppenlander from the worksite.
Potash Corporation appealed from that finding to the Court.
The facts underlining the questions to be determined by the Court were not in issue.
In determining the standard of review in the appeal, the Court considered the following factors:
(a) There was no privative clause in the Act, and there was a statutory right of appeal on a point of law.
(b) The purpose of the legislation, and in particular, s. 27, was to protect workers from reprisal when they relied on or exercised their rights under the Act or related provisions.
(c) The nature of the questions to be determined was purely legal.
(d) The adjudicator may be assumed to have some expertise relating to occupational health and safety issues; however, it could not be assumed that she had expertise in the law.
Each of these factors supported a standard of correctness and the Court concluded that that was the appropriate standard of review on the appeal.
In considering whether an employment relationship existed between Potash Corporation and Mr. Oppenlander, the Court considered the following:
(a) Potash Corporation did not hire Mr. Oppenlander and was not in a position to dismiss from his employment;
(b) Potash Corporation did not pay Mr. Oppenlander;
(c) Potash Corporation was not in a position to discipline Mr. Oppenlander as an employee;
(d) Mr. Oppenlander did not report to Potash Corporation and he did not take direction from it;
(e) Potash Corporation understood that it had not employed Mr. Oppenlander; and
(f) Mr. Oppenlander understood that his employer was Balzer’s, not Potash Corporation.
Accordingly, indicia of an employment relationship were not present and, as a matter of law, Potash Corporation was not Mr. Oppenlander’s employer. Balzer’s Canada Inc. was his employer. In making the determination that Potash Corporation was Mr. Oppenlander’s employer in the circumstances, the adjudicator erred in law.
With respect to the question of whether s. 27 of the Act applied as between him and Potash Corporation even though he was employed by Balzer’s and not by Potash Corporation, the Court noted that on the whole reading of the Act, its purpose was the protection of workers in the context of employment relationships. Considering the provisions of the Act overall, including the primary focus of the Act, the Court concluded that s. 27 required the worker to be in the service of the employer referred to in that section. Thus, Mr. Oppenlander was not a worker in the service of Potash Corporation, Potash Corporation was not his employer within the meaning of s. 27, and s. 27 could not apply to his case even if it was Potash Corporation who had banned him from the worksite.
The appeal was therefore allowed.
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