The Appellant company successfully appealed the Respondent Panel’s decision to uphold an administrative penalty relating to trenching safety requirements. The Court of Appeal held the Panel breached its duty of procedural fairness in considering documents not in the possession of the Appellant.

Administrative law – Decisions of administrative tribunals – Occupational Health and Safety Officer – Safety requirements – Penalties – Judicial review – Appeals – Procedural requirements and fairness – Natural justice – Evidence – Disclosure

Sackville Trenching Ltd. v. Nova Scotia (Occupational Health and Safety Appeal Panel), [2012] N.S.J. No. 196, 2012 NSCA 39, Nova Scotia Court of Appeal, April 16, 2012, M. MacDonald C.J.N.S., D.P.S. Farrar and P. Bryson JJ.A.

The Appellant company (“Sackville Trenching”) was digging a trench on April 22, 2010 when an Occupational Health and Safety (OH&S) Officer (the “Officer”) attended to review the site. The Officer wrote a report indicating that the 3 employees were working in the trench without a trench cage. The Officer issued a compliance order requiring Sackville Trenching to use a trench cage where the wall of the trench meets certain height and slope requirements. By the time the Officer returned, the trench was no longer in use. Sackville Trenching did not appeal the compliance order.

On July 8, 2010, the OH&S Division issued a notice of an administrative penalty of $1,000 against Sackville Trenching for the infraction on April 22, 2010. Sackville Trenching exercised its statutory right of appeal to the Respondent, the OH&S Appeal Panel (the “Panel”). The appeal was conducted by way of written submissions. The Panel upheld the penalty but reduced the amount to $800.

Sackville Trenching filed an application in the Nova Scotia Court of Appeal seeking leave to appeal with their appeal. In the course of filing documents for the appeal, it became known that the Panel considered two “file activity reports” that were not provided to Sackville Trenching. Sackville Trenching then filed an amended notice of appeal and application for leave to appeal. In the amended documents, Sackville Trenching argued the Panel violated its right to procedural fairness and natural justice by relying on evidence that was not disclosed to Sackville Trenching.

The Court of Appeal considered the one argument added to the notice of appeal. The Court reviewed the contents of the activity report. The reports document discussions with one of the employees. The reports indicated that the file was being closed based on the observations of the trench and the discussion with the employee.

The Court noted that the activity reports were referenced by the Panel on four occasions in their decision. The Court held that the documents were clearly relevant to the case that Sackville Trenching had to meet and should have been disclosed. The Court held the Panel breached its duty of procedural fairness owed to Sackville Trenching.

The Court ordered a rehearing of Sackville Trenching’s appeal by a reconstituted appeal panel. The Court did not award costs to either party.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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