If a government safety official issues an order to your company requiring it to take certain action, such as halt operations or install guards on a piece of machinery, it should promptly comply if it thinks the order’s valid. But safety officials aren’t perfect and not every order they issue is justified or reasonable. If your company disagrees with safety orders, the OHS laws allow it to challenge them. However, it can’t take the law into its own hands and unilaterally decide that orders are invalid and thus can be ignored. Deliberately disobeying or ignoring a safety order is itself an OHS violation—and a very serious one. The government often goes out of its way to punish defiance harshly.
So what option
does a company have when a safety official issues an order it thinks is unreasonable or unnecessary? The company may appeal the order to get an official ruling that it doesn’t have to comply with the order. We’ll explain what the OHS laws say about appealing safety orders and what you need to know to navigate the appeals process. There’s also
a chart that tells you who’s allowed to appeal a safety order under the OHS laws of each jurisdiction.
Defining Our Terms
The OHS laws use various terms to describe actions by safety officials that are subject to appeal, including “orders,” “decisions,” “determinations” and “directions.” For simplicity’s sake, we’ll use the term “safety order” to describe these actions.
WHAT THE LAW SAYS
The Canadian OHS laws address the consequences of endangering workers’ health and safety. For example, they state that companies can be prosecuted and fined for safety violations. These laws also give safety officials the power to compel companies to take specific steps to address potential threats to workers’ health and safety. For example, safety officials may:
- Require companies to correct any violations of the OHS law, such as install guards on machinery;
- Order companies to take measures to address a hazard or condition in the workplace that could endanger workers, such as excessive heat;
- Conduct tests of equipment or conditions, such as noise levels; and
- Stop work at a workplace until the company takes certain steps to correct a serious health and safety problem.
Officials exercise these powers by issuing safety orders—that is, written documents that typically identify the perceived violation or hazard, the steps the company must take to address the violation or hazard and the deadline by which it must do so.
Safety orders can be extremely disruptive and complying with them can be expensive. So the basic legal principles of fairness apply to safety orders. That is, it would be unfair to let safety officials order companies to take certain actions without giving those companies some mechanism to challenge the orders. Thus, every jurisdiction’s OHS law allows for appeals of safety orders. Although there are some variations between jurisdictions, the section of the OHS law that addresses appeals generally covers the following areas:
- Who may appeal a safety order;
- The deadline for filing an appeal;
- Who’s empowered to hear the appeal;
- The various elements of the appeals proceeding, such as calling of witnesses and production of documents;
- The status of the safety order during appeal; and
- Whether the side that loses the appeal can file another appeal.
We’ll discuss each of these areas in detail below.
HOW TO APPEAL
Why might your company want to appeal a safety order? There are several reasons. For example, you might believe that the order is unnecessary because your current safety measures adequately protect workers from that hazard. Or complying with the order’s requirements might be so expensive that the company can’t afford to do so. Regardless of the reasons, once your company makes the decision to appeal a safety order, you need to navigate the appeals requirements set out in your jurisdiction’s OHS laws. Here are the key questions you need to answer to do so effectively:
1. Who May Appeal a Safety Order?
With the exception of NL, every jurisdiction specifies who has the right to appeal a safety order. (NL simply states which orders may be appealed without stating who has the right to initiate the appeal). The jurisdictions take two basic approaches:
General approach. Seven jurisdictions—AB, MB, NT, NU, QC, SK and YT—simply state that any person who’s “aggrieved,” directly affected by or the subject of an order may appeal it.
Specific approach. Six jurisdictions—Fed, BC, NB, NS, ON and PEI—spell out the specific individuals or organizations that may appeal a safety order, such as:
- Employers;
- Workers;
- Unions;
- Contractors;
- Sub-contractors; and
- Constructors.
Nova Scotia’s approach is a sort of hybrid. Its OHS law says that “an aggrieved person” may appeal an order. But it also defines “aggrieved person” to include a specific list of individuals, including employers, constructors, contractors, workers, self-employed persons, owners, suppliers, architects, engineers and unions.
2. When Must the Appeal Be Initiated?
To appeal a safety order, you must generally file a written request for an appeal. The OHS laws spell out strict—and fairly tight—deadlines for such filings. In general, you must appeal a safety order within a set number of days from the issuance of that order:
- Seven days (NL);
- 10 days (QC);
- 14 days (MB, NB and NS);
- 21 days (SK and YT);
- 30 days (Fed, AB, NT, NU, ON and PEI); and
- 90 days (BC).
3. Who Will Hear the Appeal?
The person or body that hears appeals of safety orders varies by jurisdiction. Appeals of safety orders are initially heard by a designated individual, such as a government official or adjudicator, in Fed, BC, MB, NB, NL, NS, NT, NU and SK. For example, the director of workplace safety hears appeals in MB and NS, while a review officer hears appeals in BC. In contrast, a designated body hears appeals of safety orders in AB, ON, PEI, QC and YT. For example, in ON, the Labour Relations Board hears appeals of safety orders, while the workers’ comp board hears such appeals in PEI, QC and YT.
4. What Happens in an Appeal?
The OHS laws generally give the individual or body that hear appeals of safety orders broad powers to handle such appeals. For example, such powers typically include the authority to:
- Conduct investigations;
- Summon witnesses and compel them to testify or produce documents;
- Examine documents and records; and
- Decide the appeal without conducting a hearing.
The decision maker typically must issue a written decision on the appeal, confirming the safety order, revoking it or changing its terms. In addition, they may have the power to issue new orders.
5. Can the Losing Side File an Additional Appeal?
What if your company loses the appeal? Is the process over? In many jurisdictions, the company gets one and only one shot at appealing a safety order. The OHS laws in three jurisdictions—Fed, ON and YT—specifically state that appeals of safety orders are final and can’t be further appealed. For example, the
Canada Labour Code says that an “appeals officer’s decision is final and shall not be questioned or reviewed in any court” [Sec. 146.3].
But the OHS laws in the other 11 jurisdictions—AB, BC, MB, NB, NL, NS, NT, NU, PEI, QC and SK—permit further appeals of safety orders. For example, in BC, the decision of a review officer may be appealed to the Workers’ Compensation Appeal Tribunal. But there may be limits on the scope of further appeals. For instance, in SK, decisions of an adjudicator may be appealed to a Court of Queen’s Bench on a question of law or jurisdiction only.
Insider Says: The government can also appeal the adjudicator’s decision if a safety order is revoked or changed.
6. Status of Safety Orders During Appeal
Don’t be lulled into thinking that your company doesn’t have to comply with the challenged order while the appeal is pending. In fact, the OHS laws of most jurisdictions (Fed, AB, BC, MB, NB, NL, NT, NS, NU, SK and YT) specifically state that appealing a safety order
does not automatically “stay,” cancel or suspend it. In other words, your company has to comply with the order until the appeal is decided.
However, the OHS law does give the individuals or bodies that hear appeals of safety orders the power to suspend such orders while an appeal is pending, either on the company’s request or by their own initiative. So if your company doesn’t want to comply with the order until the appeal is done, it can ask the appeals individual or body to suspend the order. For example, if your company is appealing a safety order demanding the production of certain documents, producing the documents while the appeal is ongoing defeats the purpose of the appeal, making it moot. In such situations, it makes sense to ask for a suspension of the order—and you’re likely to get it. But your company is unlikely to get a suspension of a safety order pending appeal if there’s a chance that suspending it would endanger workers. For example, the individual or body hearing the appeal may not suspend an order requiring your company to install machine guards or institute safe work procedures for a certain job.
Conclusion
When a company is hit with a safety order, it’s likely to look to its safety coordinator to decide how to respond. If the company opts to appeal the order, the safety coordinator will play a key role in the appeals process. So it’s crucial for you to be up-to-speed on the law in your jurisdiction on appealing safety orders. Armed with the knowledge in this article, you should be able to help your company successfully navigate the appeals process.
KNOW THE LAWS OF YOUR PROVINCE:
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