Fougere v Alberta (Labour Relations Board), 2021 ABQB 716

Court of Queen’s Bench of Alberta Citation: Fougere v Alberta (Labour Relations Board), 2021 ABQB 716 Date: 20210908 Docket: 2101 02880 Registry: Calgary Between: Tanya Fougere Applicant - and - Alberta Labour Relations Board and Alberta Newsprint Company Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice B.B. Johnston _______________________________________________________ I.

Introduction [ 1 ] The Applicant, Tanya Fougere, filed a discriminatory action complaint under the Occupational Health and Safety Act , SA 2017, c O-2.1 (“ Act ”) alleging she faced reprisal for a work refusal. The complaint was dismissed. The Applicant appealed the decision to the Alberta Labour Relations Board (“the Board”). The Board summarily dismissed the appeal on February 4, 2021 (“the Decision”). [ 2 ] The Applicant applies for judicial review of the Decision under section 72(13) of the Act . II.

Background [ 3 ] The Applicant was employed by Clearstream Energy (“Clearstream”) as a millwright. [ 4 ] Clearstream was contracted by Alberta Newsprint Company (“Alberta Newsprint”) to provide shutdown maintenance work at their plant in Whitecourt (“the Plant”). The Applicant provided services for Clearstream at the Plant on three occasions in 2018. [ 5 ] On March 26, 2019, the Applicant was assigned by Clearstream to work at the Plant. She worked alongside Mr.

Allan Haines, who was employed by another contractor. [ 6 ] The Applicant alleges she refused unsafe work on March 26, 2019 when she refused to enter a confined space. [ 7 ] Specifically, she alleges that she and Mr. Haines were tasked to inspect a conveyor in a chip screening room and replace any

damaged screening mats. The conveyor had a partially uncovered deck exposing a chute with a ten-foot drop. The Applicant asserts that she told Mr. Al Zielke, the maintenance manager with Alberta Newsprint, that she would not work in that space, but he did not take her concern seriously. She advised Mr. Haines not to proceed with the work but he said he would be fine. He worked on the conveyor and she assisted him from the ground.

The rest of the day they worked in other areas of the Plant: Decision at para 8. [ 8 ] The Applicant was advised by her employer on April 30, 2019 that Alberta Newsprint did not want her to return to their worksite. No reasons were provided. [ 9 ] The Applicant then filed her complaint with Occupational Health and Safety (“OHS”). [ 10 ] As part of the investigation, statements were obtained from Mr. Haines, Mr. Zielke and Clearstream’s project manager, Mr. Fluet. Their recollection of the events differed from that of the Applicant. [ 11 ] Mr.

Haines noted that the Applicant did not want to work in the chip screening room because she was claustrophobic. She had concerns about the deck, but Mr. Zielke went in and the Applicant handed him anything he needed. For the remainder of the day they worked on the conveyor changing rollers and Mr. Zielke did all the work in tight areas. [ 12 ] In his statement, Mr. Zielke “completely reject[ed] her suggestions that she said anything about “[f]alling in a hole” or being afraid to “fall and die” and she did not “point out or comment to [Mr.

Zielke] on any lack of covers on any area that she suggested created dangers to her or others.” At no time did she refuse unsafe work or even identify any unsafe condition, in accordance with section 31(1) of the Act . [ 13 ] In their written response to the OHS officer (“Officer”) , the Respondent Alberta Newsprint noted that the Applicant “reported no concerns, dangerous conditions or refusal to work based on dangerous conditions to any of them”. The Applicant was not considered for future job opportunities with Alberta Newsprint because of her attitude and her performance. [ 14 ] Mr.

Fluet’s statement indicated that he saw the Applicant at the end of the work day. She advised her day went “okay”, and she had been asked to do something in her job scope that she was not comfortable with but “she had worked it out with the Alberta Newsprint folk”. III. Legislation [ 15 ] The relevant provisions of the Act are as follows: 1. In this Act , (b) “appeal body” means the appeal body referred to in section 71(1); Right to Refuse Dangerous Work 31(1) Subject to this

section and

section 5, a worker may refuse to work or to do particular work at a work site if the worker believes on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to the worker’s health and safety or to the health and safety of another worker or another person.

(2) A worker who refuses to work or to do particular work under subsection (1) shall promptly report the refusal and the reasons for it to the worker’s employer or supervisor or to another person designated by the employer or supervisor. … Prohibition of Discriminatory Action 35 No person shall take any discriminatory action against a worker, by reason of that worker (

f) refusing to do work under section 31(1) ... (

i) taking reasonable action to protect the health and safety of that worker or any other person. Discriminatory Action Complaint 36(1) A worker who has reasonable cause to believe that the worker has been subjected to discriminatory action in respect of an alleged contravention of

section 35 may file a complaint with an officer.

(2) An officer who receives a complaint under subsection (1) shall investigate, make a decision and prepare a written report of the worker’s complaint, the investigation and the decision of the officer and shall give the worker and the employer a copy of the report. ...

(4) A worker or an employer who receives a report under subsection (2) may appeal the matter to the appeal body under

section 71 by serving a notice of appeal on the appeal body within 30 days from the receipt of the report.

Appeal 71(1) The Labour Relations Board under the Labour Relations Code is the appeal body for the purpose of this Act .

(2) A person (

a) to whom an order is issued under

section 36, 62, 63, 64 or 65, ... (

d) who has received a report under section 36(2), or ... may appeal the order, administrative penalty, cancellation or suspension, the decision in the report referred to in clause (

d) or the decision to which the written reasons in clause (

e) relate to the appeal body. Hearing of Appeal ... 72(9) The appeal body may establish rules of procedure respecting the hearing of appeals under this Act . ... 72(13) An order of the appeal body may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court of Queen’s Bench and served on the appeal body no later than 30 days after the date of the order. IV. History of Proceedings [ 16 ] On May 1, 2019, the Applicant filed a complaint with OHS under

section 36 of the Act , alleging Alberta Newsprint had breached

section 35 (

f) of the Act .

Section 35 prohibits discriminatory action against a worker for acting in compliance with the Act , including a work refusal under section 31(1) of the Act . [ 17 ] An Officer investigated the allegations. [ 18 ] During the investigation, the Officer communicated with the Applicant, Clearstream and Alberta Newsprint on numerous occasions and collected statements, submissions and documentary evidence. [ 19 ] A report was issued on May 7, 2020. The Officer concluded that no discriminatory action occurred as the Applicant was not engaged in a protected activity under

section 35 (

f) of the Act . [ 20 ] The Applicant filed a notice of appeal on June 2, 2020. The Board is the designated appeal body under the Act . [ 21 ] In accordance with section 72(9) of the Act , the Board established rules of procedure for OHS appeals (“the Appeal Rules”). Rule 22 of the Appeal Rules outlines a preliminary review process that includes a provision for

summary dismissal. [ 22 ] After receiving the Applicant’s notice of appeal, the Board outlined the process that would be followed in correspondence to the Applicant. Specifically, OHS was directed to provide the record. The Respondents could provide a written response to the notice of appeal. The Applicant could provide a reply.

The parties were advised the file would be brought before an administrative panel of the Board for a documentary review to determine whether the matter would be referred to a hearing. [ 23 ] Vice-Chair Smith conducted a preliminary review of the Officer’s decision to determine whether there was any basis to send the appeal forward to a hearing. He dismissed the appeal on February 4, 2021 after concluding the appeal was without merit. V.

Standard of Review [ 24 ] An order of the appeal body may be reviewed by way of an application for judicial review: Act , section 72(13). [ 25 ] In determining the appropriate standard of review, the presumption is reasonableness. This presumption can be rebutted where: (

i) there is a legislatively prescribed standard of review; or (ii) the question on review falls into a category of questions that the rule of law requires to be reviewed on a standard of correctness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 10 and 16 (“ Vavilov ”). [ 26 ] There is no legislated standard of review. The Decision does not engage any issues that would attract a correctness standard. The standard of review is reasonableness. VI. Issue

[ 27 ] Was the decision of the Board to summarily dismiss the Applicant’s appeal reasonable? VII. Analysis A. Preliminary Issues i.

Standing [ 28 ] On June 17, 2021, Alberta Newsprint was added as a respondent pursuant to the Consent Order of Master Prowse. [ 29 ] The Board requested standing before this Court to address the standard of review; to answer questions about the certified record of proceedings; and, to address any questions regarding the Act and the Board’s role and functions as an appeal body. [ 30 ] None of the parties objected to the Board’s participation. [ 31 ] I find it appropriate to grant standing on such limited basis to ensure a “fully informed adjudication of the matter”: Ontario (Energy Board) v Ontario Power Generation Inc ., 2015 SCC 44 . ii.

Admission of New Evidence [ 32 ] The Board prepared a certified record of proceedings in accordance with Rule 3.19 of the Alberta Rules of Court , AR 124/2010 (“the Rules ”). [ 33 ] The Applicant filed an affidavit sworn March 2, 2021 (“the Affidavit”) that was not part of the certified record and that was new evidence. In her written materials, the Applicant relied on the Affidavit. The Respondent Alberta Newsprint objected to the introduction of the Affidavit. [ 34 ] During oral argument, the Applicant sought to rely on an exhibit appended to the Affidavit.

Subsequently, the Applicant withdrew her application to rely on the remainder of the Affidavit. [ 35 ] The exhibit in question was a letter dated March 25, 2019 from the Applicant’s physician regarding a medical condition, which the Applicant argues relates to the duty to accommodate. The Respondent Alberta Newsprint objects and argues the Affidavit is inadmissible. They rely on Rule 3.22. [ 36 ] The general rule is that judicial reviews will be based on the certified record of proceedings: Rule 3.22(a).

New evidence may only be admitted at the discretion of the Court and in limited circumstances such as when evidence is necessary to establish a reasonable apprehension of bias, where the facts in support do not appear on the record or where there are deficiencies in the certified record: Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) , 2006 ABQB 904 at paras 41 and 42 (“ Alberta Liquor Store ”). [ 37 ] I do not find any circumstances extant in this case that would justify the admission of the exhibit into evidence.

The issue of an employer’s duty to accommodate is a new issue that was not before the Officer or the Board. There is no evidence that the admission of the new evidence relates to any of the limited circumstances articulated in Alberta Liquor Store . Therefore, I decline to admit the evidence. B. Was the Decision of the Board Reasonable? i. The Tenets of Reasonableness [ 38 ] The burden is on the Applicant to show the Decision of the Board was unreasonable.

In order to meet this burden, the Applicant must show “serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.” Any shortcomings must be “sufficiently central or significant to render the decision unreasonable”: Vavilov at para 100 . [ 39 ] A reviewing Court must consider only whether the decision, including the rationale and outcome, was unreasonable: Vavilov at para 83 .

The hallmarks of reasonableness include justification, transparency and intelligibility and “whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov at para 99 . [ 40 ] A reasonable decision is “based on an internally coherent and rational chain of analysis” and “is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85 . ii.

Was the Decision Based on an Internally Coherent Reasoning and a Rational Chain of Analysis? [ 41 ] The Board provided detailed written reasons outlining the basis of the decision to dismiss the appeal. [ 42 ] The appropriate standard of review was identified: Decision at para 14, referring to MacDougall v Occupational Health and Safety Council, 2015 ABQB 591 at paras 14 and 15 (“ MacDougall ”). [ 43 ] Vice-Chair Smith reviewed the appropriate statutory provisions. He then reviewed the Officer’s report in detail and confirmed that the Officer: (

i) documented the process she engaged in during her investigation; (ii) summarized the key extracts of the

statements and submissions received; and, (iii) provided her analysis of the discriminatory action complaint as well as articulated the relevant determinations relating to whether a contravention of

section 35 of the Act had occurred. [ 44 ] In the Decision, Vice-Chair Smith considered each of the four grounds identified in the notice of appeal: Decision at para 15. [ 45 ] The Decision followed a rational and logical line of reasoning. Vice-Chair Smith applied appropriate principles of statutory

interpretation, engaged with the submissions and evidence that was before him, and drew on his knowledge of the field when considering the practical implications of the

interpretation: Canada Post Corp v Canadian Union of Postal Workers , 2019 SCC 67 at para 35 . iii. Was the Decision Justified in Light of the Relevant Legal and Factual Constraints? [ 46 ] The Applicant argues that Vice-Chair Smith’s Decision was unreasonable because he did not appropriately address concerns relating to the Officer acting “as investigator and judge and jury.” However, this concern was specifically addressed in the Decision.

The Board noted that section 36(2) of the Act “expressly contemplates that an officer who receives a complaint under section 36(1) shall investigate, make a decision, and prepare a written report addressing the complaint, the investigation and the decision. It is clear the Officer’s approach in handling the complaint was compliant with the Act . This concern is without merit”: Decision at para 16. [ 47 ] Vice-Chair Smith further addressed the allegations of bias raised by the Applicant in her submissions.

He noted that the Applicant’s “bald allegations of bias or misconduct” on the part of the Officer lacked merit as there was no evidence in the record or any of the materials submitted to support the claim. [ 48 ] The decision of the Officer was not rendered unreasonable by the Officer investigating the matter, rendering a decision, and preparing the report. This process is prescribed under the Act : Act , section 36(1) .

Based on the factual record before the Board, there was no basis to support a claim of misconduct or bias. [ 49 ] The Board further addressed the Applicant’s concerns relating to procedural fairness. [ 50 ] The Applicant argues that the Officer and the Board erred when they failed to compel “photos, or other evidence, such as the non-existent permit or rescue plan” or an atmospheric test.

The Board concluded there was no error by the Officer when she did not take steps to gather further evidence relating to the validity of the protected activity under the Act as evidence of “this nature was immaterial to an investigation into a discriminatory action complaint alleging a breach of

section 35 .” This was a reasonable conclusion. A determination of whether there has been a violation of

section 35 of the Act does not require an analysis of such evidence. [ 51 ] The Applicant further argues that the Board erred in determining that the evidence was capable of supporting the conclusion of the Officer that the Applicant was not engaged in a protected activity. I disagree. [ 52 ] In addressing these concerns, the Board noted that the Officer summarized “the key extracts” of evidence, provided the analysis of the discriminatory complaint, and outlined the relevant considerations to determine whether a contravention of

section 35 (

f) of the Act had occurred. I agree with the Board that notwithstanding there is some competing evidence, the information gathered by the Officer in the investigation can reasonably support the decision to dismiss. The record is capable of supporting the conclusion that the Applicant was not engaged in a protected activity pursuant to

section 35 (

f) of the Act including the following outlined at paras 11and 12 of the Decision: Mr. Haines’ statement that the Applicant said she was claustrophobic; Mr. Zielke’s statement that the Applicant did not refuse work or report on unsafe conditions; Mr. Haines’ statement did not mention a refusal to work to Mr. Zielke or anyone else at Alberta Newsprint; Mr.

Fluet’s statement did not indicate the Applicant had reported a work refusal on March 26 th ; The Applicant’s Fit for Duty Form did not disclose any limitation in performing work; and The four-page diary of the Applicant does not state a work refusal was communicated to the maintenance manager. [ 53 ] The Applicant urges this Court to reach a different conclusion on the facts. The task of this Court, however, is not to reweigh the evidence or decide if they could come to a different conclusion on the record before them.

Rather this Court must determine if the Decision can be justified in light of the relevant legal and factual constraints. Notwithstanding there is some competing evidence as outlined in the Decision, I find it can. [ 54 ] In reaching the conclusion to dismiss the appeal, Vice-Chair Smith opined that, based on the record before him, it was open for the Officer to conclude that the Applicant never communicated any refusal to perform dangerous work. Therefore, there was no work refusal under

section 31 of the Act . He acknowledged that although there was competing evidence, “the preponderance of the key evidence on this important point favours the determination reached by the Officer. It was certainly within the reasonable conclusions the Officer could draw that there had not been a communication about a work refusal to an [Alberta Newsprint] representative that would amount to

an act of compliance with the Act .”: Decision at para 21. Specifically, the Board noted at para 20: The Record indicates the Officer went to considerable lengths to gather and share information on the issue of whether the Appellant communicated her refusal to work to the employer or supervisor, or another designated person under section 31(2). While there is competing evidence as to whether the Appellant reported her safety concern to her supervisor, Mr. Zielke, her contention she did was strongly disputed by Mr. Zielke, and the evidence of Mr. Fluet and Mr. Haines also did not support her claim.

Indeed, in her initial complaint submission to OHS, her refusal to work centers around her perception the work area was an unlit, untested confined space, which aligns with Mr. Haines’ recollection she said she was claustrophobic. The Appellant listed Mr. Haines as a potential witness and in the materials she acknowledged there was no animosity between them when they worked together.

[55] The principles of justification and transparency also require that “an administrative decision maker’s reasons meaningfullyaccount for the central issues and concerns raised by the parties”: Vavilov at para 127. A failure to “meaningfully grapple with key issuesor central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matterbefore it”: Vavilov at para 128. [56] In this case, the Board addressed the grounds of appeal raised by the Applicant and provided cogent reasons for each of thegrounds.

The Board identified the specific arguments of the Applicant and explained its rationale for accepting the conclusions of theOfficer. [57] Before this Court, the Applicant has also raised a number of new issues in the judicial review. [58] The Applicant raises for the first time that there was a violation of

section 35(

i) of the Act. This was not raised before theBoard. Nevertheless, the Applicant asserts the “reasonable action to protect the health and safety” she took with respect to

section 35(i)was to refuse unsafe work. The Officer determined there was no refusal, therefore the conclusion by the Officer that there was noprotected activity would not change. [59] The Applicant further alleges violations of the Alberta Human Rights Act, RSA 2000 c A 25.5 (“Human Rights Act”) andviolations of

section 15 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (UK), 1982, c 11 (“Charter”). In particular, the Applicant alleges that she suffered both racial and genderdiscrimination. She argues the Decision failed to consider that she was singled out as an Indigenous female tradesperson. Further, sheargues there was a failure by Alberta Newsprint to accommodate her to the point of undue hardship and the Board failed to consider theadverse impacts to her in the workforce.

I note these concerns were not raised with the Officer and were not raised before the Board.Notwithstanding that these arguments were not raised before the Board and therefore not addressed in the Decision, I will nonethelessdeal with these arguments. [60] Allegations of discrimination relating to the Applicant’s status as an Indigenous female working in the trades, and whetherthere was a failure by Alberta Newsprint to accommodate any disabilities, are properly adjudicated under the Human Rights Act. [61] The Applicant does not seek to challenge the provisions of any legislation.

She asserts she suffered discrimination inemployment based on the enumerated or analogous grounds in

section 15 of the Charter. However,

section 15 of the Charter has noapplication to private employment situations: RWDSU v Dolphin Delivery Ltd, (SCC), [1986] 2 SCR 573. [62] The Applicant also asserts the Board’s reliance on the decision in MacDougall is improper as the facts of the case are notanalogous to her situation. She also argues the MacDougall decision condones gender-based violence in the workplace. I agree that thefacts are not analogous.

However, the Board properly relies on MacDougall solely for its arguments relating to standard of review. [63] The Applicant raised numerous concerns in her written materials and oral submissions that many of the positions articulatedby prior counsel for Alberta Newsprint throughout the proceedings were unfounded.

None of the concerns relate to the reasonableness ofthe Decision and are therefore not a basis for impugning the Decision of the Board. [64] Finally, the Applicant asserts that there was a close relationship between counsel for Alberta Newsprint and a labour relationsofficer and this is evidence of bias. However, she acknowledged there was no such evidence of a close relationship with Vice-ChairSmith and therefore she is not raising bias as an issue relating to the Decision.

Although I need not address the allegations of bias, I findthere is no merit to the concerns as there is no evidence in the materials before me to support any such claims. [65] For the reasons noted above, I find the Decision is based on reasoning that is both rational and logical. There is a “line ofanalysis” within the reasons “that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”:Vavilov at para 102. It is also “justified in relation to the constellation of law and facts that are relevant to the decision”: Vavilov at para105.

The reasons provide a transparent and intelligible justification for the decision to dismiss the appeal from the Officer. VIII. Conclusion [66] The application for judicial review is dismissed. [67] I thank the parties for their thoughtful written and oral submissions. [68] The parties may speak to costs within 20 days of the date of this decision. Heard on the 29th day of June, 2021. Dated at the City of Calgary, Alberta this 8th day of September, 2021. B.B. Johnston J.C.Q.B.A.

Appearances: Tanya Fougere the Applicant (Self-Represented Litigant) Adam Ollenberger for the Respondent Alberta Newsprint Company Terri Susan Zurbrigg for the Respondent Alberta Labour Relations Board