Procrane Inc (Sterling Crane) v Thompson, 2016 ABQB 646

Court of Queen’s Bench of Alberta Citation: Procrane Inc (Sterling Crane) v Thompson, 2016 ABQB 646 Date: 20161121 Docket: 1503 17313, 1503 17323 Registry: Edmonton 1503 17323 Between: Procrane Inc., operating under the trade name of Sterling Crane Applicant/Appellant - and - Derek Thompson and Occupational Health and Safety Council Respondents 1503 17313 And between: Derek Thompson Appellant - and - Procrane Inc., operating under the trade name of Sterling Crane and Occupational Health and Safety Council Respondents _______________________________________________________

Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ I Introduction [ 1 ] Derek Thompson (Thompson) filed a safety complaint with Occupational Health and Safety (OHS) alleging that his employer Procrane Inc., operating under the trade name of Sterling Crane (Sterling), was not performing required maintenance on a crane he was operating.

Thompson subsequently filed with OHS a disciplinary action complaint alleging that Sterling terminated his employment in retaliation (Complaint). [ 2 ] An OHS officer (Officer) dismissed Thompson's Complaint against Sterling (Officer's Decision). Thompson appealed and the OHS Council (Council) overturned the Officer's Decision. The appeal was conducted entirely by written submissions without an oral hearing. [ 3 ] Sterling seeks, by way of judicial review and statutory appeal, an order setting aside the decision of Council (Council's Decision) and reinstating the Officer's Decision.

In the alternative, Sterling seeks an order that the Council's Decision be set aside and remitted to it for an oral hearing. [ 4 ] Thompson seeks relief by way of statutory appeal from Council's Decision with respect to issues of lost wages and reinstatement. Sterling seeks an order dismissing Thompson's appeal. Thompson has been self-represented throughout this procedure, including all appearances before this Court and the Court of Appeal on matters incidental to this procedure.

II Facts [ 5 ] In fall 2014, Sterling was working at the North West Redwater Upgrader Project (Project) under a subcontract with ClearStream Energy Holdings LP. [ 6 ] Sterling employed Thompson at the Project to operate a 55 ton crane. [ 7 ] On December 12, 2014, OHS received a safety complaint from Thompson alleging that Sterling was not performing required maintenance with respect to the crane. [ 8 ] On January 13, 2015, Mr.

Thompson filed a Complaint with OHS against Sterling alleging that he was terminated by Sterling on December 12, 2014 in retaliation for filing the first complaint and that Sterling contravened s. 36 of the Occupational Health and Safety Act , RSA 2000, c 0-2 ( Act ).

Dawn Gray, an OHS officer (Officer), was appointed to investigate the Complaint. [ 9 ] Sterling asserted that on December 11, 2014, Jason Cain (Cain), a representative of Sterling, met with James Masterman, a construction manager with ClearStream, during which meeting he was told that ClearStream was finished using the crane (Meeting) and that it was therefore due to a lack of work that Thompson was laid off on December 12, 2014. [ 10 ] On March 4, 2015, Cain received an email (Email) from Masterman referencing the discussion at the Meeting pertaining to ClearStream's use of the crane.

The Email states in part: On December 11, 2014 we had a conversation about the work scope that I had in front of me and how many cranes I would be able to keep busy. At that time I informed you that I was finished with your 55 ton crane that was working for us... [ 11 ] On the same day, Cain forwarded the Email to Bob Picken (Picken), Sterling’s Vice President of Risk Management, who in turn immediately forwarded the Email to the Officer.

The Officer followed up with Picken by email on April 16, 2015 to ask clarification questions about the Email. [ 12 ] On May 15, 2015, the Officer issued the Decision dismissing the Complaint, stating in part: An OHS investigation into disciplinary action complaints must establish the following three elements: 1. there has been

an act of compliance with legislation on the part of the worker, 2. there was a disciplinary action taken against the worker, and 3. there is a causal connection between the act of compliance and the disciplinary action taken. [ 13 ] The Officer reviewed two disciplinary letters prepared by Sterling and found that they were rescinded, and Thompson's Record of Employment amended, prior to him filing the Complaint.

The Officer found that the first part of the test was satisfied as Thompson had made an entry into a log book of a perceived health and safety concern, but rejected the allegation by Thompson that this prompted disciplinary action in the form of termination of his employment. On this point the Officer stated in part:

... The evidence gathered indicates that you and two other workers were no longer required at the site due to lack of work. ... It is the finding of this Officer that the lay-off was not disciplinary in nature. Therefore this part of the test is not satisfied. [ 14 ] The Officer went on to state: As

part 2 of the test has not been satisfied, there is no need to consider the causal link question in

part 3. [ 15 ] With respect to an appeal, the Officer's Decision stated: A review may be conducted by the Occupational Health and Safety Council at their discretion and all documents provided to OHS will be made available to the Council at that time. [ 16 ] On May 26, 2015, Thompson appealed the Officer's Decision to the Council pursuant to s. 37(3) of the Act . He requested an appeal in written submission format only, as opposed to an oral hearing. [ 17 ] Sterling was provided with a standard OHS form, entitled “Respondent Statement”, to be completed and returned to the Council.

Picken completed the form and answered the questions contained therein. He answered "No" to the question: Do you have any relevant evidence that was not shared with the OHS officer which you want Council to consider in your appeal? If so, send one hard copy of this new evidence to the Respondent and four copies to the OHS Council Clerk as soon as possible. .... [ 18 ] Picken also included in the Respondent Statement a one page response as to Sterling's position which stated in part: ... As the evidence presented to Ms. Gray confirms, Mr.

Thompson was not terminated but laid off on December 12, 2014 as the crane he was operating was no longer required by our customer (an email confirming this was provided to Ms. Gray). If our customer does not require the crane, we do not require the crane operator. ... [ 19 ] On October 22, 2015, the Council issued its Decision overturning the Officer's Decision. It found that Sterling had knowledge of Thompson's Complaint before he was laid off.

The Council's Decision stated in part: On December 12, 2014, the Appellant was laid off, with the Respondent indicating that the customer did not need the crane operated by the Appellant any more. The Appellant's Record of Employment referenced 'not returning'. The Respondent indicated that an email supporting the lack of customer need had been provided to the investigating OHS officer but this material was not included in the Appellant or Respondent's submissions to the OHS Council. ...

While this Council grants deference to the investigating officer, it is our respectful view that the investigating officer rendered a decision in this case that is not supported by a balanced review of the evidence. We find the issuance of the two letters were disciplinary in nature, as was the Appellant's termination of employment. An important consideration in this written appeal process was that there was a lack of information submitted on behalf of the respondent to support its contention of lack of employment need for that crane operator.

As this was a key point for the conclusion of the OHS officer's evaluation, it is expected the Respondent would have provided this documentation in its written response to this appeal. There is no documentation provided to support this assertion. [ 20 ] Pursuant to an order granted by Mah J. on October 3, 2016, Sterling was permitted to adduce Picken’s affidavit of September 6, 2016 into evidence on this judicial review and statutory appeal. The Email dated March 4, 2015 is attached as Exhibit A.

A further email dated April 16, 2015 from the investigating officer Dawn Gray to Picken, confirming receipt of the Email and asking for clarification of certain points, is attached as Exhibit B. III Statutory Scheme [ 21 ] The Act provides in part: Where disciplinary action prohibited 36 No person shall dismiss or take any other disciplinary action against a worker by reason of that worker acting in compliance with this Act, the regulations, the adopted code or an order given under this Act, the regulations or the adopted code.

Disciplinary action complaint 37(1) A worker who has reasonable cause to believe that the worker has been dismissed or subjected to disciplinary action in contravention of section 31(5) or 36 may file a complaint with an officer.

(2) An officer who receives a complaint under subsection (1) shall prepare a written record of the worker's complaint, the investigation and the action taken and shall give the worker and the employer a copy of the record.

(3) A worker or an employer who receives a record under subsection (2) may request a review of the matter by the Council by serving a notice of appeal on a Director of Inspection within 30 days from the receipt of the record.

(4) After considering the matter, the Council may by order (

a) dismiss the request for a review, or (

b) require one or more of the following: (

i) reinstatement of the worker to the worker's former employment under the same terms and conditions under which the worker was formerly employed; (ii) cessation of disciplinary action; (iii) payment to the worker of money not more than the equivalent of wages that the worker would have earned if the worker had not been dismissed or had not received disciplinary action; (iv) removal of any reprimand or other reference to the matter from the worker's employment records.

(5) If the worker has worked elsewhere while the dismissal or disciplinary action has been in effect, those wages earned elsewhere shall be deducted from the amount payable to the worker under subsection (4)(b)(iii).

(6) An appeal lies to the Court of Queen's Bench from an order of the Council on a question of law or a question of jurisdiction and on hearing the matter the Court may make any order, including the awarding of costs, that the Court considers proper. ... [ 22 ] The Council established OHS Council Rules of Procedure (March 2015) under s. 17(7) of the Act . Those Rules provide in part: II

DEFINITIONS In these Rules of Procedure : ...(b) "Appeal Record" means the OHS officer's Decision Letter, Notice of Appeal and Respondent statement (if any)... IV APPEAL PANEL STRUCTURE (a.) In accordance with

section 17 of the Act, an Appeal Panel shall consist of the Council Chair, or his or her designate as Panel Chair, and 2 members of the Council. ... V FILING THE APPEAL AND PRELIMINARY PROCESS ... (h.) The Council Chair will review the Appeal Record to determine whether the appeal was filed within the statutory time period, whether the file is sufficiently complete to proceed, whether further information is required to be submitted, and whether the Council has the jurisdiction to decide matters stated in the appeal. ...(o.) Appellants must make their case on the merits in order to win the appeal.

The OHS Council is an appeal body. It is not a regulator or an agency of first instance. Therefore, it will consider whether the OHS officer's decision was reasonable based on the facts and the applicable law. Appellants have the burden to convince the Appeal Panel that the OHS decision being appealed was erroneous to such an extent that Council must vary or repeal it. VI THE HEARING (a.) An appeal may be conducted entirely by written submissions, without an oral hearing. The Appellant will express a preference for the appeal format from two options on the Notice of Appeal.

In both options, the principles of procedural justice are ensured. These options are: (i.) Written submissions only (no opportunity to cross-examine witnesses); OR (ii.) Face-to-face, in-person oral hearing (may increase parties' costs and time to final appeal decision). If the Appellant does not make a specific election of appeal format, the Council Chair will choose the appeal format. (b.) Parties are strongly encouraged to co-operate with the original OHS investigation.

Parties should not deliberately withhold relevant and important information and evidence from, or refuse to co-operate with, the OHS officer or investigator. Appeals to Council should generally be based upon the information and evidence available to the investigating officer. A party may apply to present "fresh" evidence for the first time in an appeal to Council in special circumstances. That party must convince the Appeal Panel that such evidence is relevant to the issues under appeal, was not readily available by ordinary diligence to be

presented to the officer or investigator in the first instance, and would make a material difference in the outcome of the case. (c.) Process for Appeals by Written Submissions If the written submissions option is elected, the parties to the appeal will be requested to provide a written submission of facts and argument. The Appellant's written submission must be filed within 10 business days of request from Council. Respondents who participate in the appeal beyond the Appeal Record must file their written submission in response within 10 business days of receipt of the Appellant's submission.

The Appellant may file a rebuttal submission addressing the Respondent's submission within 4 business days of receiving it. The Appeal Record, together with all Appellant and Respondent subsequent filings will comprise the complete appeal file. ... The Appeal Panel will review the Appeal Record and all written submissions together which will form the basis for its decision. Any further questions, redirects or inquiries from the Appeal Panel will be transmitted to all parties simultaneously. ...

IV Sterling’s Appeal/Application for Judicial Review A Issues [ 23 ] Sterling has appealed and applied for judicial review. This Court must determine the following issues: 1. What is the appropriate standard of review? 2. Did the OHSC err in its decision, or commit a breach of procedural fairness or natural justice? 3. If so, what is the appropriate remedy?

B Analysis 1 What is the appropriate standard of review? [ 24 ] The Supreme Court has confirmed in recent cases that the Dunsmuir framework continues to guide the standard of review analysis on judicial review: Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, Wilson v Atomic Energy of Canada Ltd , 2016 SCC 29 , [2016] SCJ No 29, Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 , [2016] SCJ No 47 ( Capilano ). [ 25 ] In Capilano , the majority also held that issues arising on statutory appeals do not constitute a category to which the correctness standard necessarily applies. [ 26 ] In Border Paving Ltd v Alberta (Occupational Health and Safety Council) , 2009 ABCA 37 , 446 AR 207, the Court of Appeal held: 21 Existing standard of review analyses concerning the tribunal may be used: Dunsmuir at paras. 57 and 62 .

This Court previously concluded that the Council is a specialized tribunal that commands curial deference and has developed an institutionalized expertise in the

interpretation of the OHSA's provisions and their application: Navrot v. Alberta Occupational Health and Safety Council , 2005 ABCA 398 at para. 11 , 376 A.R. 161. We adopt this conclusion and it points to deference. By contrast, the statutory right of appeal in section 16(5) suggests less deference.

This leaves consideration of the nature of the question at issue. [ 27 ] As for the nature of the question, the Supreme Court in Dunsmuir identified four categories of issues calling for correctness: 1) constitutional questions regarding the division of powers, 2) issues of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, 3) true questions of jurisdiction or vires , and 4) issues regarding the jurisdictional lines between two or more competing specialized tribunals. [ 28 ] Regarding statutory rights of appeal, the majority in Capilano confirmed that where the issue involves the

interpretation by an administrative body of its own statute, the standard of review is presumed to be reasonableness, and this presumption is not rebutted by an appeal clause limiting appeals to questions of law or jurisdiction. [ 29 ] Reasonableness has been determined to be the appropriate standard of review to be applied in statutory appeals of decisions of the Council under: − s. 16(6) of the Act regarding a stop work order: Border Paving − s. 35(11) regarding an imminent danger complaint: MacDougall v Occupational Health and Safety Council , 2015 ABQB 591 , [2015] AJ No 1021, and − s. 37(6) regarding a disciplinary action complaint: Navrot v Alberta (Occupational Health and Safety Council) , 2005 ABCA 398 , 376 AR 161 (the Court in that pre- Dunsmuir case found patent unreasonableness applied). [ 30 ] Leaving aside for the moment issues of procedural fairness, I conclude that the standard of review of reasonableness applies on this Court’s review of the Council’s Decision, whether in the context of the judicial review or the statutory appeal.

[ 31 ] As for issues of procedural fairness raised by Sterling, in Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 at para 82 , [2011] 3 SCR 654, Binnie and Deschamps JJ. stated that on issues of procedural fairness or natural justice, courts should not defer to a tribunal's view of the extent to which its home statute permits it to proceed in what the courts conclude is an unfair manner. [ 32 ] In Mission Institution v Khela , 2014 SCC 24 at para 79 , [2014] 1 SCR 502, the Court held that the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review that applies to other flaws in the decision or in the decision-making process; for example, the correctness standard will continue to apply to procedural fairness issues. [ 33 ] It has been held that issues pertaining to natural justice and procedural fairness are questions of law: Kirchmeir v Boulanger , 2000 ABCA 324 at para 19 , 271 AR 340, Steele v Edmonton (City) Police Service , 2016 ABCA 95 , [2016] AJ No 327.

If so, then arguably the Capilano decision puts in question past statements to the effect that procedural fairness is necessarily assessed on a correctness standard. [ 34 ] The general rule is that a duty of fairness applies in the administrative context, although the content of procedural fairness varies with circumstances and the legislative and administrative context.

The general rule will yield only to clear statutory language or necessary implication to the contrary: Canada (Attorney General) v Mavi , 2011 SCC 30 at para 39 , [2011] 2 SCR 504. [ 35 ] The proceedings in this case occurred within a framework of the Council’s home statute and rules. A reasonable

interpretation of the home statute and rules must fall within a range of admissible statutory

interpretations, being acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir at para 47 . [ 36 ] When it comes to procedural fairness, admissible statutory

interpretations are informed by the principles of natural justice found in a well-established body of case law. It is true that the courts have expertise in this area of the law. However, tribunals have expertise in the application of their home statutes and rules. If a decision maker interprets them in such a way as to produce unfairness, that manner of proceeding will be unreasonable in the absence of clear statutory language or necessary implication to the contrary.

In other words, procedural unfairness is presumptively unreasonable. [ 37 ] Of course, if an issue of procedural fairness is of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, correctness will apply. One might argue that many or all issues of procedural fairness are of central importance to the legal system as a whole. However, the context of procedural fairness is variable, and the importance of natural justice and procedural fairness to the legal system as a whole is already protected by the presumption.

Further, procedural fairness does not require a perfect process: Canada (Citizenship and Immigration) v Harkat , 2014 SCC 37 at para 43 , [2014] 2 SCR 33. One might conclude that reasonableness, rather than correctness, is a more appropriate standard to apply to this issue in a post- Capilano world. [ 38 ] In this case, the issues of procedural fairness are informed by the Act and the Rules applied by the Council.

It would be unreasonable for the Council to interpret those tools in a manner which is inconsistent with the principles of natural justice in the absence of clear statutory language or necessary implication to the contrary. [ 39 ] In light of the uncertainty raised by Capilano with respect to the applicable standard of review, I will first apply the reasonableness standard of review in determining whether those principles were observed in this case.

However, I will also consider the issue on the correctness standard if I find the procedure applied by the Council to have been reasonable. 2 Did the OHSC err in its decision or commit a breach of procedural fairness or natural justice? [ 40 ] In Ryan v Law Society of New Brunswick , 2003 SCC 20 , [2003] 1 SCR 247, the Supreme Court of Canada explained that reasonableness basically involves asking, after a somewhat probing examination, whether the reasons taken as a whole support the decision.

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.

In other words, the reviewing court must assess whether a decision is basically supported by the reasoning of the tribunal, rather than engage de novo in its own reasoning on the matter. [ 41 ] This Court cannot determine the reasonableness of the Council’s decision without considering the standard of review which the Council was to apply when it was reviewing the Officer’s decision. [ 42 ] In Newton v Criminal Trial Lawyers' Assn , 2010 ABCA 399 at paras 42-43 , 493 AR 89, the Court of Appeal set out the factors to be considered in determining the standard of review where an appellate administrative body reviews the decision of another:

a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation;

b) the nature of the question in issue;

c) the

interpretation of the statute as a whole;

d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal;

e) the need to limit the number, length and cost of appeals;

f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and

g) other factors that are relevant in the particular context. [ 43 ] Investigations of complaints and decisions on those complaints are made by an OHS officer, who acquires extensive experience and expertise in reviewing and evaluating complaints. The OHS officer applies facts and makes a discretionary decision. The Council has no role except when it is asked to review a decision made by the OHS officer.

[ 44 ] Section 37(3) of the Act provides that a worker or an employer who receives a record may request a review of the matter by the Council. Section 37(4) provides that the Council may dismiss the request for a review, or make an order including one or more of the following: reinstatement of the worker, cessation of disciplinary action, payment to the worker, or removal of any reprimand from the worker's employment records. [ 45 ] Rule V(

o) provides that the Council will consider whether the Officer's Decision was reasonable based on the facts and the applicable law. Rule VI(

b) provides that appeals to Council should be based upon the information and evidence available to the investigating officer, although a party may apply to present fresh evidence on appeal. [ 46 ] In overturning the Officer's Decision, the Council used language suggesting that it was reviewing the Officer’s Decision for reasonableness: While this Council grants deference to the investigating OHS officer, it is our respectful view that the investigating officer rendered a decision in this case that is not supported by a balanced review of the evidence. [emphasis added] [ 47 ] Based on all of the foregoing, I conclude that reasonableness was the internal standard of review that the Council intended, and which it purported, to use. [ 48 ] The central issue before the investigating Officer was whether Thompson was terminated by Sterling because he filed a safety complaint, or rather was laid off because ClearStream no longer had a need for the Crane. [ 49 ] The Officer relied on “the evidence gathered” in determining that Thompson was laid off for non-disciplinary reasons.

In Sterling’s Respondent Statement, submitted to the OHS Council, Picken stated that an email was before the Officer confirming that the crane Thompson was operating was no longer required by Sterling’s customer. In Picken’s affidavit of September 6, 2016, he deposed that he forwarded the Email to the Officer as evidence in the investigation and she emailed him for clarification about it. [ 50 ] The information contained in the Email was clearly before the Officer, and was considered by her in arriving at her Decision.

The Officer, in her Decision, stated that in the event of an appeal "all documents provided to OHS will be made available to the Council at that time". [ 51 ] Thompson appealed. Rule VI(

a) allows the appellant to choose the appeal format. The Rule states that in both written and oral hearings, the principles of procedural justice are ensured. The Council’s review was conducted on the basis of written submissions. [ 52 ] The Council considered the cause of the layoff to be the central issue. It indicated that it did not have certain important information stating: On December 12, 2014, the Appellant was laid off, with the Respondent indicating that the customer did not need the crane operated by the Appellant any more. The Appellant's Record of Employment referenced 'not returning'.

The Respondent indicated that an email supporting the lack of customer need had been provided to the investigating OHS officer but this material was not included in the Appellant or Respondent's submissions to the OHS Council . ... We find the issuance of the two letters were disciplinary in nature, as was the Appellant's termination of employment. An important consideration in this written appeal process was that there was a lack of information submitted on behalf of the respondent to support its contention of lack of employment need for that crane operator.

As this was a key point for the conclusion of the OHS officer's evaluation, it is expected the Respondent would have provided this documentation in its written response to this appeal. There is no documentation provided to support this assertion. [emphasis added] [ 53 ] The Council found a temporal link between the disciplinary letters and Thompson's safety concerns communicated to Sterling verbally and through the log books, and Thompson's termination.

Council again said that this, in conjunction with the lack of information to support that the layoff was due to lack of work, led it to conclude that the termination was due to the safety concerns raised by Thompson. [ 54 ] It is clear from the Council's reasons that the fact that there was missing information, which had been before the Officer, was material to its decision on the basis for the termination. [ 55 ] The onus on appeal to the Council was on the appellant, Thompson, pursuant to Rule V(o).

Rule V(h.) placed an obligation on the Council Chair to review the Appeal Record to determine whether the file was sufficiently complete to proceed, and whether further information was required to be submitted.

The Chair should have been aware that the Email upon which the Respondent relied on the appeal had been provided to the Officer, as this was noted in the Respondent’s written submission. [ 56 ] The standard form Respondent Statement contains the question: "Do you have any relevant evidence that was not shared with the OHS officer?" The clear inference is that evidence shared with the OHS officer need not be re-submitted.

Picken responded “no” to this question, and in completing the response, he advised that the Email had been provided to the Officer confirming that Thompson was laid off because ClearStream did not have further use for the Crane. In my view, Sterling in these circumstances had every reason to believe that the Email provided to the Officer, and on which the Officer relied, would be before the Council. [ 57 ] Rule 6(

c) provides that the Appeal Panel will review the Appeal Record and all written submissions together which will form the basis for its decision. The definition of “Appeal Record” in Rule II(

b) encompasses the OHS officer's Decision Letter, Notice of

Appeal and Respondent statement if any. [ 58 ] Given that the Council reviews the Officer’s decision for reasonableness, the definition of “Appeal Record” in the Rules cannot justify or limit the meaning of “file” or “further information” in Rule V(h.), nor the obligation of the Chair to ensure that the file is “complete”.

In short, the Council must have before it the evidence which was before the Officer in order to determine whether the Officer’s decision was reasonable. [ 59 ] In all of the circumstances, it was nonsensical and unreasonable for the Council to review the Officer's Decision on written submissions only, without having the Email, overturn the Officer's Decision and then assert that there was an onus on Sterling to provide this key evidence. [ 60 ] I conclude that the failure of the Chair to ensure that the file was complete rendered the procedure unfair.

The Council identified as material to its Decision the absence of information which was before the Officer and which was referenced in Sterling’s Respondent Statement. The procedural unfairness resulted in the Council's Decision being unreasonable as it was not in a position to review the Officer’s Decision on the reasonableness standard. [ 61 ] Further, Council had been made aware of the existence of the evidence through Sterling’s Respondent Statement which indicated that the Email had been provided to the Officer.

As well, the standard Respondent form contains the question "Do you have any relevant evidence that was not shared with the OHS officer?" The Council’s Decision was unreasonable in that it attached significance to Sterling’s failure to submit, on appeal, evidence that had been before the Officer. 3 What is the appropriate remedy? [ 62 ] The Act provides that this Court can make any order that the Court considers proper, including the awarding of costs. [ 63 ] Sterling submits that in the circumstances of this case the Council's Decision should be set aside without ordering a new hearing.

It cites Yukon v McBee , 2010 YKCA 8 , 292 BCAC 218 where Bennett JA for the court stated: 30 ... obliging the court to order a new hearing every time it sets aside a decision of the Board is neither practical nor economical.

There may be situations in which a new hearing is required, but the court is free to make such a determination in each case on its particular facts. [ 64 ] Sterling says that if the Council had been in possession of the Email before it on appeal, there was only one possible conclusion it could have reasonably reached, namely the decision to uphold the Officer's Decision. [ 65 ] Further, Sterling asserts that Thompson's behavior in this matter can be characterized as that of a "vexatious litigant" (although acknowledging that he has not been formally designated as such).

Sterling asserts that deciding the matter now rather than remitting it back to the OHS Council is the most economical result, due in no small part to Thompson’s pattern of litigation conduct. [ 66 ] Counsel for the OHS Council, while taking no position on whether the Council's Decision was reasonable submits that if this Court finds the Decision to be unreasonable it should be remitted to the Council to be dealt with in accordance with the directions of this Court, referring to CICTV v Communications Energy and Paperworkers' Union of Canada, Local M1 , 2014 ABQB 329 , [2014] AJ No 813 at paras 106 , 108.

In that case, Phillips J. cited a body of case law for the proposition that the traditional remedy where an administrative decision is found to be defective is to remit the matter to the administrative body for reconsideration unless exceptional circumstances exist, such as where remitting the case would be pointless, where the tribunal is no longer fit to act, and where in light of the circumstances and the evidence in the record, only one

interpretation or solution is possible. [ 67 ] Counsel for the OHS Council says that Thompson's conduct has been punished by significant cost awards against him (in one case an award of solicitor-client costs) and that the relative experience of an OHS Council is an important factor that favours remitting the matter for redetermination.

Counsel submits that the appropriate remedy is to send the matter back with directions to be heard by a new Council. [ 68 ] In the circumstances of this case, I am mindful of the substantial costs incurred in ongoing litigation and that costs awards by the courts, absent an award on a solicitor client basis, rarely indemnify and make whole the successful party. I had the opportunity of hearing the submissions of Thompson during these proceedings. They were rambling and without structure or coherence much of the time.

However, while this is a relevant factor, it is my view that the Council's Decision should nonetheless be remitted back to be heard again. It should be heard on the basis of written submissions - unless Council, Sterling and Thompson agree otherwise – and this time with the benefit of all of the information that was before the Officer. V Thompson’s Appeal [ 69 ] As this matter will be remitted, I need not deal with Thompson’s appeal.

However, I will address his arguments for the sake of completeness. [ 70 ] The Council's Decision overturning the Officer's Decision ordered, pursuant to s. 37(4), that payment of lost wages to Thompson be limited to one month, along with reinstatement subject to certain conditions. Bill Spring (Spring) a member of the Council dissented in

part in finding that Thompson should be entitled to lost wages for the entire time that the crane remained on the project. [ 71 ] Thompson appealed the Council's Decision pursuant to s. 37(6) on the basis that the majority of the panel should have followed Spring's dissent with respect to the scope of lost wages award. Further, he appealed the reinstatement award. [ 72 ] Section 37(6) provides that an appeal lies to this Court only on a question of law or jurisdiction. The Council was clearly

acting within its jurisdiction. Council’s order is one that is contemplated by s. 37(4). [ 73 ] The only remaining available ground would be a question of law. The Supreme Court of Canada has stated that questions of law are questions about what the legal test is: Creston Moly Corp v Sattva Capital Corp , 2014 SCC 53 at para 49 , [2014] 2 SCR 633. Thompson’s appeal must be based on an alleged error regarding the legal test to be applied in granting the lost wages and reinstatement awards. [ 74 ] Section 37(4) is permissive as it uses the word “may”:

Interpretation Act , RSA 2000, c I-8, s 28. Having considered the discretion vested in the Council, and the particulars of the order in question, I conclude that Thompson’s appeal of the Council’s order raises questions of fact or mixed fact and law. There is no statutory right of appeal for questions of fact or mixed fact and law under the Act . Spring's dissent clearly indicates that he simply disagreed with the majority as to how its discretion should be exercised pursuant to the section. [ 75 ] Therefore, I find that this Court has no jurisdiction to consider Thompsons’ appeal.

VI Conclusion [ 76 ] The Council’s Decision was unreasonable. The matter is remitted back, to be heard with the benefit of all of the information that was before the Officer. [ 77 ] As a result, it is not strictly necessary to deal with Thompson’s appeal. In any event, however, this Court has no jurisdiction to consider Thompsons’ appeal which raises issues of fact or mixed fact and law. VII Costs [ 78 ] Sterling is entitled to its costs in relation to both its application/appeal and Thompson’s appeal. Heard on the 4 th day of November, 2016.

Dated at the City of Edmonton, Alberta this 20 th day of November, 2016. Gerald A. Verville J.C.Q.B.A. Appearances: Mr. Derek Thompson for the Self-Represented Litigant Mr. Greg Weber (Reynolds Mirth Richards & Farmer LLP) Counsel for Procrane Inc, Operating Under the Trade Name of Sterling Crane Mr. William W. Shores, QC (Shores Jardine LLP) Counsel for Occupational Health and Safety Council