Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 Date: 20130716 Docket: 08-10-812-CVC Registry: Iqaluit Applicant: The Government of Nunavut as represented by the Minister of the Environment -and- Respondent: The Worker’s Safety and Compensation Commission and Debbie Jenkins ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Respondent): Shirley A. Walsh (WSCC) Counsel (Respondent): David Yazbeck (Jenkins) Counsel (Applicant): John L.

MacLean Location Heard: Iqaluit, Nunavut Date Heard: September 17, 2012 Matters: An application for judicial review of a decision of the Worker’s Safety and Compensation Commission and the Chief Safety Officer. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. BACKGROUND

[ 1 ] The Respondent, Debbie Jenkins (Jenkins), holds the position of Wildlife Biologist with the Government of Nunavut, Department of the Environment in Pond Inlet. She has held this position since 2006. One of her duties is to supervise the Wildlife Technician (the Technician). [ 2 ] The Department of Environment in Pond Inlet is a physically small office with two to three employees. [ 3 ] The workplace relationship between Jenkins and the Technician was difficult from the beginning. Jenkins made several complaints of harassment to her manager.

These complaints were dealt with pursuant to the process set out in the Government of Nunavut (GN) Human Resources “Harassment Free Workplace” policy, which resulted in discipline against the Technician, including three suspensions, as follows: • April 29, 2009 – 1 day • December 8, 2009 – 3 days • January 18, 2010 – 5 days [ 4 ] On January 25, 2010, Jenkins contacted the Workers' Safety and Compensation Commission (WSCC) and notified it that, pursuant to s. 13(2) of the Safety Act, R.S.N.W.T. 1988, c.

S-1 , as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c.28 [Safety Act], she was refusing to work on the grounds that she was subject to an unusual danger in the workplace. The unusual danger was said to be harassment by the Technician. [ 5 ] The Safety Officer contacted the GN and agreed to defer any investigation pending the results of an investigation to be carried out by the employer. [ 6 ] The Technician was suspended for 30 days while the GN undertook an investigation.

As the investigation was not completed within 30 days, the Technician was relocated to another workplace and, while the GN investigation was ongoing, Jenkins returned to the workplace. [ 7 ] An investigator retained by the GN travelled to Pond Inlet in May of 2010, to carry out an investigation. Jenkins refused to participate in the investigation when she was advised that statements obtained from her would have to be shared with the Technician or his representative. The GN was advised by the investigator that the investigation could not be completed.

This information was passed on to the WSCC. [ 8 ] A Safety Officer employed with the WSCC undertook an investigation which was completed on August 6, 2010, just over six months after the work refusal. The Safety Officer found that Jenkins was subject to harassment in the workplace and that the harassment constituted an “unusual danger” pursuant to

section 13 of the Safety Act . The work refusal was upheld and the GN was directed to take certain steps to address issues in the workplace. [ 9 ] The decision of the Safety Officer was appealed to the Chief Safety Officer by the GN.

Some of the grounds of appeal were: • that the investigation was not concluded within the statutory time limitations set out in the Safety Act and therefore the Safety Officer was without jurisdiction; and • that workplace harassment does not constitute an unusual danger as contemplated by the Safety Act . [ 10 ] These two grounds of appeal were dismissed by the Chief Safety Officer. [ 11 ] The GN seeks judicial review of the decision of the Chief Safety Officer.

II. ISSUES [ 12 ] The issues in this case are as follows: 1. Is the Safety Act quasi-constitutional in nature? 2. Did the Safety Officer lose jurisdiction because a decision was not rendered within the time limits set out in section 13(5) of the Safety Act ? 3. Does the Chief Safety Officer's

interpretation of “unusual danger” in

section 13 of the Safety Act meet the applicable standard of review? 4. What is the applicable standard of review for issues #2 and #3? III. EVIDENCE A.

Applicable legislation [ 13 ] The Safety Act was enacted in 1974 and, while it has undergone amendments since that time, in many ways it is substantially similar to what was initially enacted. [ 14 ] The Safety Act , as enacted and currently, places a general obligation on employers to provide a workplace that does not endanger the health or safety of any person ( s. 4 , Safety Act). [ 15 ] The Safety Act in its original form did not provide a worker with a right to refuse unsafe work.

Safety Officers were given the power to carry out inspections and provide directions to an employer to address concerns arising from an inspection and, in particular, if any “place, matter or thing” was a source of imminent danger, the equivalent of a stop work order could be issued until the dangerous situation was rectified. [ 16 ] Amendments in 1982 have provided for the right to refuse unsafe work. The relevant provisions of the Safety Act are as follows: Inquiries 8. The Commission may (

a) cause inquiries to be made into and concerning the health and safety of workers in any establishment; and (

b) appoint one or more persons to hold an inquiry with authority to exercise all powers required to examine, inquire into, hear and determine all matters and questions referred to that person or persons by the Commission. S.N.W.T. 1996,c.9,Sch.I,s.19; S.Nu. 2007,c.15,s.177(Sch.,s.15(4)(a)). Powers and duties of safety officers 9.

(1) A safety officer (

a) shall make the inspections and inquiries and carry out the tests that the safety officer considers necessary to ensure that this Act and the regulations are being complied with;... Non-compliance with Act or regulations

(2) Where a safety officer has reasonable cause to believe that this Act or the regulations are not being complied with, the safety officer

may (

a) inspect, examine and take extracts from or make copies of all books and records relating to conditions of work that may affect the health or safety of any person employed on or in connection with any establishment; and (

b) require any person employed on or in connection with any establishment to make full disclosure, production and delivery to the safety officer of all records or documents or copies of them, or other information, orally or in writing, that the person has in his or her possession or under his or her control and that relates to the conditions of work affecting the health or safety of the worker, or of the other workers, in his or her or their employment. . . . Directions arising out of inspection 12.

(1) In the course of carrying out an inspection, a safety officer may (

a) give directions in writing for the carrying out of anything regulated, controlled or required by this Act or the regulations; and (

b) require that his or her directions be carried out within the time that the safety officer specifies. Notice respecting further direction if potential danger

(2) A safety officer who is satisfied that any place, matter or thing that is the subject of a direction that he or she intends to give under subsection (1) is likely to constitute a source of potential danger to the health or safety of persons in an establishment if the direction is not carried out may, in giving a direction under subsection (1), give notice that a further direction may be given under subsection (3). Potential danger

(3) Where an employer or a person charged with carrying out a direction given under subsection (1) in respect of which a safety officer has given notice under subsection (2), fails to carry out the direction, the safety officer may give a direction that the place, matter or thing shall not be used until the direction given under subsection (1) is complied with. Work or things necessary for compliance

(4) Nothing in subsection (3) prevents the doing of any work or thing necessary for proper compliance with the direction. Appeal

(5) The employer or the person charged with carrying out a direction given under subsection (1) or (3) may appeal the direction under

section 16. S.Nu. 2003,c.25,s.8. Posting notice of potential danger 12.1.

(1) Where a safety officer gives a direction under subsection 12(3), the safety officer shall affix to or near the source of potential danger a notice of the danger in the prescribed form. Removal of notice

(2) No person shall remove the notice referred to in subsection (1) unless authorized to do so by the safety officer or by the Chief Safety Officer. S.Nu. 2003,c.25,s.9. Definition of "unusual danger" 13.

(1) In this section, "unusual danger" means, in relation to any work, (

a) a danger that does not normally exist in that work; or (

b) a danger under which a person engaged in that work would not normally carry out his or her work. Right to refuse work

(2) A worker may refuse to do any work where the worker has reason to believe that (

a) there exists an unusual danger to the health or safety of the worker; (

b) the carrying out of the work is likely to cause to exist an Unusual danger to the health or safety of the worker or of any other person; or (

c) the operation of any tool, appliance, machine, device or thing is likely to cause to exist an unusual danger to the health or safety of the worker or of any other person. Reporting refusal to work

(3) On refusing to work, the worker shall promptly report the circumstances of his or her refusal to the employer or supervisor who shall without delay investigate the report and take steps to eliminate the unusual danger in the presence of the worker and a representative of the worker's union, if there is such, or another worker selected by the worker who shall be made available and who shall attend without delay. Refusal to work following investigation

(4) Following the investigation and any steps taken to eliminate the unusual danger, the employer or supervisor, as the case may be, shall notify the worker of the investigation and the steps taken, and where the worker has reasonable grounds to believe that (

a) there exists an unusual danger to the health or safety of the worker, (

b) the carrying out of the work is likely to cause to exist an unusual danger to the health or safety of the worker or of

any other person, or (

c) the operation of any tool, appliance, machine, device or thing is likely to cause to exist an unusual danger to the health or safety of the worker or of any other person, the worker may refuse to work and the employer, supervisor or worker shall without delay notify the Committee or, where there is no Committee, a delegate of the Chief Safety Officer of the refusal to work. Decision of Committee or delegate

(5) The Committee or the delegate of the Chief Safety Officer, as the case may be, shall, within 24 hours after receiving notification, investigate the circumstances that caused the refusal to work in the presence of the employer, or a person representing the employer, and the worker, and decide whether an unusual danger exists or is likely to exist, as the case may be. Performing work if unusual danger exists

(6) Where it is decided under subsection (5) that an unusual danger exists or is likely to exist, as the case may be, no person shall perform the work until (

a) the employer has taken steps to eliminate the unusual danger, and (

b) the Committee or the delegate of the Chief Safety Officer, as the case may be, is satisfied that the unusual danger no longer exists or is no longer likely to exist, and the Committee or the delegate of the Chief Safety Officer, on being satisfied of that, shall without delay notify the worker that the unusual danger no longer exists or is no longer likely to exist, as the case may be. Where worker to remain pending decision or appeal

(7) Pending the investigation and decision by the Committee or the delegate of the Chief Safety Officer under subsections (5) and (6) or pending an appeal under subsection (9), the worker shall remain in a safe place at or near the place of the investigation during his or her normal working hours unless the employer, subject to the provisions of a collective agreement, if any, assigns the worker to temporary alternative work that the worker is competent to perform. Pay

(8) The worker shall be paid at his or her regular rate of pay during the normal working hours the worker spends at the place of the

investigation or in the performance of alternative work. Appeal

(9) The worker or the employer may appeal a decision of the Committee to the Chief Safety Officer who shall, as soon as is practicable, investigate and decide on the matter. Decision

(10) Notwithstanding

section 17, the decision of the Chief Safety Officer under subsection (9) is final. S.Nu. 2003,c.25,s.10. Imminent danger 14. Where a safety officer is satisfied that any place, matter or thing constitutes a source of imminent danger to the health or safety of persons employed on or in connection with an establishment (

a) the safety officer shall notify the employer or person in charge of the establishment of the danger and give directions in writing to the employer or person in charge directing him or her, within the period of time that the safety officer specifies, (

i) to take measures for alleviating or reducing the danger, and (ii) to protect any person from the danger; and (

b) the safety officer may, if the safety officer considers that the danger cannot otherwise be alleviated, reduced or protected against immediately, direct that the place, matter or thing shall not be used until the directions of the safety officer are complied with, but nothing in this paragraph prevents the doing of any work or thing necessary for the proper compliance with the direction. Posting notice of danger 15.

(1) Where a safety officer gives a direction under

section 14, the safety officer shall affix to or near the source of danger, a notice of danger in the prescribed form. Removal of notice

(2) No person shall remove the notice referred to in subsection (1) unless authorized to do so by the safety officer or by the Chief Safety Officer. Appeal to Chief Safety Officer 16.

(1) Any person who is aggrieved by a direction or decision of a safety officer may, within 30 days after the date the direction or decision is made, appeal to the Chief Safety Officer. ( ss. 8 - 9 , 12 - 16 , Safety Act ). B. Positions of the parties

(i). Government of Nunavut [ 17 ] The GN submits that the appropriate standard of review for both issues #2 and #3 is correctness. It submits that the privative clause in the Safety Act is not a full privative clause and should be accorded less deference because of this. It also points to section 13(9) and 17(1) of the Safety Act, which provide for appeals to the court.

The GN further states that the issues to be determined go to the jurisdiction of the WSCC and, for that reason, should be determined on a correctness standard. [ 18 ] The GN submits that by including harassment in the definition of “unusual danger”, the Safety Officer expanded the definition of “unusual danger” beyond that intended by the Legislature and that application of the Safety Act should be restricted to physical dangers. (ii).

WSCC & Jenkins [ 19 ] The WSCC and Jenkins submit that the appropriate standard of review for both issues #2 and #3 is reasonableness. [ 20 ] They submit that the existence of a privative clause requires a standard of reasonableness. They also argue that the Chief Safety Officer was interpreting the statute which she is responsible for and has particular expertise in the area of occupational safety and for these reasons must be accorded deference.

They submit that the issue is not a true jurisdictional issue. [ 21 ] Jenkins further submits that the Safety Act is a quasi-constitutional legislation and must be interpreted with that status in mind. IV. ANALYSIS A. Is the Safety Act “quasi-constitutional” legislation? [ 22 ] Jenkins submits that the purpose and objectives of the Safety Act are of such importance that the legislation is “quasi- constitutional” in nature. [ 23 ] Laws may be constitutional, quasi-constitutional, or of general application.

The paramountcy of legislation may be determined by reference to, amongst other things, its characterization as constitutional, quasi-constitutional, or of general application. Each type or level of legislation is subject to somewhat different rules of

interpretation. [ 24 ] Quasi-constitutional legislation is paramount to laws of general application. Any exemption to the application of quasi- constitutional legislation must be explicit and narrowly interpreted. [ 25 ] Quasi-constitutional legislation is identified by canvassing the jurisprudence or by reading the legislation in question. Some legislation, such as human rights legislation, has long been identified by the courts as being quasi-constitutional in nature. On occasion, the legislation in question may state that it is quasi-constitutional in nature.

Such is the case with the Official Languages Act, R.S.N.W.T. 1988, c. O-1 , as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 , and the Inuit Language Protection Act, S.Nu. 2008, c.17. [ 26 ] There is no doubt that the objective of worker safety is important to all of society; however, this alone does not make the Safety Act quasi-constitutional in nature. Indeed, it might be said that all legislation are enacted for the purpose of implementing important public policy.

Something more is required to raise legislation to the status of quasi-constitutional. [ 27 ] There is nothing in the subject matter of the Safety Act or in the Safety Act itself to suggest that it is to be considered as quasi- constitutional so I must proceed to consider any jurisprudence on the issue.

[28] In the case of Chaisson v Kellogg Brown & Root (Canada) Co., 2007 ABQB 302, 267 DLR (4th) 639, rev’d 2007 ABCA 426, 289DLR (4th) 95, leave to appeal to SCC refused, [2008] 460 AR 179 (note) [Chaisson], the court was dealing with the validity of pre-employment drug testing and whether a potential employee had been discriminated against when he was denied employment because ofa failed drug test. In determining the issue, the court was required to consider both occupational safety legislation and human rightslegislation.

The court did not see itself as dealing with two pieces of legislation, both of which were quasi-constitutional. It viewed thelegislation dealing with occupational health and safety as legislation of general application. The court stated: In terms of first principles, the starting point is that human rights legislation is to be given a broad, purposive

interpretation which is tobe adapted to "changing social conditions" and evolving "conceptions of human rights" [endorsing Driedger at para. 29 in Quebec(Commission des droits de la personne et des droits de la jeunesse) v. Montreal (Ville), 2000 SCC 27 , [2000] 1 S.C.R. 665,2000 SCC 27 (S.C.C.) “Boisbriand.” Protected rights are to receive a broad

interpretation and exceptions and defences are to be narrowlyconstrued]. Human rights legislation is also quasi constitutional legislation; the Act (s. 1(1)) contains a paramountcy clause in s. 1(1) which meansthat in cases of conflict between statutes, human rights legislation will govern.

So while employers have a duty to maintain a healthy andsafe work environment under s. 2 of the Occupational Safety Act, they must do so in a way which respects human rights. (Chaisson atpara 50-51, overturned on appeal on other grounds). [29] I accept that the Safety Act must be interpreted in a broad manner that will fulfill its objectives and purposes. This is required by theInterpretation Act, R.S.N.W.T 1988, c.I-8, as duplicated for Nunavut by s.29 of the Nunavut Act S.C. 1993, c.28 [Interpretation Act],which is applicable to all legislation and which provides as follows: Remedial nature of enactments 10.

Every enactment shall be construed as being remedial and shall be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects. [30] The jurisprudence is clear that occupational health and safety legislation sets the minimum standards for workplace safety andemployers and workers cannot contract out of its application. However, the inability to contract out of minimum statutory standards isquite different from finding that the legislation is quasi-constitutional in nature. [31] As previously stated, there is nothing in the Safety Act itself that identifies it as being quasi-constitutional in nature.

Thejurisprudence does not support the proposition that the occupational health and safety legislation is quasi-constitutional in nature. [32] While I acknowledge that the Safety Act addresses compelling public safety issues, I am not persuaded that it is quasi-constitutionallegislation and I decline to view it as such. B.

Standard of review [33] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2009 SCC 9, [2008] 1 SCR 190, establishes two standards forjudicial review - correctness and reasonableness. [34] A standard of reasonableness requires the court to determine if the decision being reviewed falls within the range of acceptablepossible decisions while a correctness standard requires that the decision be legally correct. [35] In determining the applicable standard of review the court should first determine if the issue has already been established by thejurisprudence.

If it has not, the court must determine the proper standard of review having regard to the following factors:

1. whether the legislation has a privative clause and the nature of such a clause; 2. the purpose and expertise of the tribunal; 3. the nature of the legal question. (i). Privative clause [ 36 ] Pursuant to

section 13 of the Safety Act , a worker may refuse work if the worker has reason to believe that an unusual danger exists. If a worker refuses work the circumstances of the refusal must be reported to the employer who must investigate the complaint and take steps to eliminate the unusual danger.

If the worker continues to refuse work the matter is referred to the Safety Committee or a delegate of the Chief Safety Officer for investigation and determination of whether an unusual danger exists. [ 37 ] A decision of the Safety Committee or the delegate of the Chief Safety Officer may be appealed to the Chief Safety Officer.

The Safety Act does not provide for an appeal of the decision of the Chief Safety Officer, but rather states that the decision of the Chief Safety Officer is final. [ 38 ] The existence of the privative clause in s.13 (10) of the Safety Act is indicative of the intention of the Legislature that the court not be involved in reviewing decisions of the Safety Officer on these particular issues and supports the application of a standard of review of reasonableness. (ii).

Purpose and expertise of the tribunal [ 39 ] Where a decision maker has developed expertise in the subject matter within its jurisdiction then deference should be shown to the decision. [ 40 ] Safety Officers appointed pursuant to the Safety Act are responsible for ensuring work places comply with the Safety Act and other legislation dealing with occupational health and safety. It is fair to say that historically such legislation was concerned with the physical nature of the worksite and such things as appropriate safety devices on equipment.

Over time, as knowledge was gained regarding industrial diseases, such as those arising from exposure to asbestos, Safety Officers developed expertise in identifying and addressing environmental hazards that impact on health. These types of hazards are clearly addressed in the legislation and one can quite comfortably be assured that Safety Officers are well versed in these areas. [ 41 ] One can reasonably expect that Safety Officers are provided with extensive training on the legislation, regulations, and policies that they are responsible for enforcing.

The area is highly technical and their expertise in the areas covered by such legislation and policies is to be given deference. However, neither the Safety Act nor the General Safety Regulations, R.R.N.W.T. 1990, c. S-1 , as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 , which are extensive, refer to harassment. This is in contrast to other jurisdictions where the legislation defines harassment and requires certain steps be taken to address harassment in the workplace. (iii).

Nature of the question [ 42 ] Where a decision maker is interpreting its own statute or a statue closely connected to its functioning, a standard of reasonableness will usually apply. The exception is when the decision maker is determining a question of general law that is of significance to the legal system as a whole. In such instances, the standard of review is one of correctness. C. Analysis on the applicable standard of review (i). Standard of review on issue # 2: did the Safety Officer lose jurisdiction because a decision was not rendered within the time limits set out in section 13(5) of the Safety Act ?

[ 43 ] Section 13(5) of the Safety Act provides that the Committee or the delegate of the Chief Safety Officer shall, within 24 hours of having received a notification of a work refusal, investigate, and decide whether an unusual danger exists. [ 44 ] In this matter, the Safety Officer contacted the employer upon being notified of the work refusal and directed the employer to investigate the complaint. The employer attempted an investigation but was unable to conclude it and reported this to the Safety Officer approximately four months later.

At that time the Safety Officer undertook an investigation, which was completed within approximately two months. [ 45 ] In the case of A.T.A v Alberta (Information and Privacy Commissioner), 2011 SCC 61 , [2011] 3 SCR 654 [A.T.A] , there were complaints that the Alberta Teachers' Association (A.T.

A) had disclosed private information in contravention of the Personal Information Protection Act, SA 2003, c P-6.5 . The Information and Privacy Commissioner undertook an investigation which took 29 months to complete. The applicable legislation required that an investigation be completed within 90 days unless the Commissioner notified the parties that he was extending the time period and provided an anticipated date for completion of the investigation. The Commissioner notified the parties of the extension 22 months after having received the complaint. [ 46 ] In deciding the issue as to the proper

interpretation to be given to the statutory provisions regarding the time limitation, the Supreme Court of Canada considered that the tribunal was interpreting its home statute, that the issue did not raise constitutional issues or issues regarding the jurisdiction of specialized tribunals with overlapping tribunals, and that, although the issue was one of law, it was not an issue of central importance to the legal system as a whole but was one which was specific to that particular tribunal.

The court determined that deference was owed and that the proper standard of review was reasonableness (A.T.A headnote). [ 47 ] In the case of Canada Post Corporation v C.U.P.W, 2011 FCA 24 , 414 NR 189 [CUPW] , the court was called upon to determine the standard of review for judicial review of a tribunal's

interpretation of a time limitation in the Canada Labour Code, RSC 1985, c L-2 . The statutory limitation provided that an appeal from a decision of a health and safety officer could be brought within 30 days of the date of the direction being issued or confirmed in writing. In the matter before it, the decision was dated and forwarded to the Appellant during a period when the Appellant's offices were closed for holidays. As a result, the Appellant did not actually receive the decision until some days later.

The appeal was brought beyond 30 days from the day the decision was dated and forwarded to the Appellant's office but within 30 days of the Appellant having actually received the decision. The court considered that the tribunal was interpreting its home statute, the discrete nature of the legal issue, the expertise of the decision makers, and the existence of a strong privative clause in coming to the conclusion that the standard of review was one of reasonableness (CUPW at para 18). [ 48 ] The aforementioned cases are similar to the matter before me.

The Chief Safety Officer was interpreting a time limitation in her home statute. While the question is a legal one, it is not one that is of central importance to the legal system generally. The time limitation is contained in s. 13 of the Safety Act and decisions under that

section are subject to a privative clause. [ 49 ] I find that the appropriate standard of review on the issue of whether the Safety Officer lost jurisdiction because of non-compliance with the deadline in s. 13(5) of the Safety Act is one of reasonableness. (ii). Standard of review on issue # 3: does the Chief Safety Officer's

interpretation of “unusual danger” in

section 13 of the Safety Act meet the applicable standard of review? [ 50 ] The substantive issue in this case is whether harassment falls within the types of workplace dangers or health issues contemplated by the Safety Act and can be a basis for work refusal. [ 51 ] In determining this issue, the Safety Officer is required to interpret various provisions of the Safety Act .

The GN submits that in doing so she is required to determine the scope of her jurisdiction and that this supports a standard of review of correctness. [ 52 ] There is the potential, in any individual case, for there to be overlapping jurisdiction on harassment issues between a human rights tribunal, a labour arbitrator, a labour standards board and, if harassment is found to fall within the ambit of the Safety Act , a Safety Officer. Such potential overlap currently exists regardless of the decision in this matter.

A finding that there is concurrent jurisdiction on a particular matter is distinguishable from a finding that one tribunal has exclusive jurisdiction, to the exclusion of another tribunal. In my view, it is in the latter instance that a standard of correctness is more likely to apply. This is not such a case.

[ 53 ] The decision of the Chief Safety Officer is protected by a privative clause. While the legislation does not specifically refer to harassment, Safety Officers do have training in workplace danger and health issues generally. Both of these factors support the argument that the standard of review is reasonableness. [ 54 ] Given all of this, I find that the standard of review on the issue of whether the WCSS exceeded its jurisdiction by finding that workplace harassment constitutes an “unusual danger” for the purposes of the Safety Act , is reasonableness. D. Analysis on the substantive issues (i).

Issue # 2: did the Safety Officer lose jurisdiction because a decision was not rendered within the time limits set out in section 13(5) of the Safety Act ? [ 55 ] If a worker refuses work because of an unusual danger and the matter is not resolved between the worker and the employer, the matter is referred to the Safety Committee or a delegate of the Chief Safety Officer.

The Safety Act, section 13(5) states: The Committee or the delegate of the Chief Safety Officer, as the case may be, shall, within 24 hours after receiving notification, investigate the circumstances that caused the refusal to work in the presence of the employer, or a person representing an employer, and the worker, and decide whether an unusual danger exists or is likely to exist, as the case may be. [ 56 ] The Chief Safety Officer received notification of Jenkin's work refusal on January 25, 2010.

The parties agreed to defer the investigation by the Safety Officer so that the employer could undertake an investigation and try to resolve the matter. Upon receiving notice in May 2010 that the employer could not complete the investigation, the Safety Officer undertook an investigation, which was concluded on August 6, 2010.

This was more than six months after having received notification of the work refusal. [ 57 ] The Chief Safety Officer interpreted s. 13(5) of the Safety Act as requiring that an investigation be commenced within 24 hours of having received a complaint but that it could be concluded beyond the 24 hour period. She considered the exigencies of travel in Nunavut due to distance and weather, the volume of materials that might require review in any particular case, and the potential unavailability of the necessary parties for an investigation, to conclude that an

interpretation that required an investigation be commenced and completed within 24 hours would be impossible to comply with in many circumstances. The consequence of a strict

interpretation of the time limitation would result in dangerous situations not being addressed and would defeat the purpose of the provision. [ 58 ] The decision is transparent, its reasoning process is clear, and it is one of several possible reasonable

interpretations of the section. On this basis, I decline to interfere with the decision. (ii). Issue # 3: does the Chief Safety Officer's

interpretation of “unusual danger” in

section 13 of the Safety Act meet the applicable standard of review? [ 59 ] A review of the history and development of occupational health and safety legislation is of assistance in determining the proper scope of the legislation. [ 60 ] There do not appear to be any court decisions on whether the right to refuse work extends to circumstances that do not involve a physical danger or risk; however, a review of decisions at the tribunal level are of assistance. [ 61 ] In reviewing the tribunal decisions it is important to note that many jurisdictions have undergone recent changes to their occupational health and safety legislation.

The changes include the incorporation of specific provisions regarding workplace violence and workplace harassment. [ 62 ] Prior to such amendments, most of the decisions involving harassment at the tribunal level were in the context of the reprisal provisions of occupational health and safety legislation and involved employees who claimed to have been terminated or disciplined for

having made harassment complaints. A number of these decisions are from the Ontario Labour Relations Board (OLRB). [63] The case of Musty v Meridian Magnesium Products Limited, 1996 OLRB Rep November/December 964, (ONLRB) [Meridian], dealt specifically with the issue of whether an employee could seek a remedy under the Occupational Healthand Safety Act, RSO 1990, c 0.1 [OHSA], for harassment. The OHSA did not have any provisions that dealt specifically with mentalhealth, stress or harassment.

If harassment was to be covered at all by the OHSA, it had to be because it fell within one of the generalprovisions dealing broadly with “health and safety” and workplace hazards. The OLRB discussed the purpose of occupational health andsafety legislation and contrasted that legislation with human rights legislation. In doing so, it noted that human rights legislation hasspecific provisions dealing with harassment and procedures and remedies that are in many ways different from those provided for inoccupational health and safety legislation.

While the OLRB found that harassment and stress in the workplace could have adversephysical and psychological effects on employees and, as such, could constitute a hazard to an employee's health or safety, the OLRBwent on to find that harassment did not fit well into the OHSA scheme, which dealt primarily, if not exclusively, with physical hazards.As a result, the OLRB declined to exercise jurisdiction. [64] In Abdulkadir v Dough Delight Inc., [1998] OLRB Rep 405, 1998 CarswellOnt 2686 [Abdulkadir], the Board stated, at paragraph21: There have in recent years been an increasing number of complaints filed which allege breaches of section 50(1) of the OHSA, which arebased upon factual assertions that do not allege mechanical or physical dangers in the workplace.

These complaints have derived from avariety of contexts where there exist legitimate workplace concerns, such as sexual harassment (Musty v Meridian Magnesium ProductsLtd., [1996] OLRB Rep 964 (Ont LRB)), racial discrimination (Pieters v Toronto Board of Education, [1997] OLRB May 541(OntLRB)), stress and anxiety (Scarborough (city), Board File No. 0656-97-OH, December 15, 1997, unreported) and so on). [65] The case goes on to quote at length from those decisions which stand for the proposition, perhaps best stated in the quote from thedecision in Scarborough (city): Workplace hazards may be physical or non-physical, but it is apparent that the Occupation Health and Safety Act and Regulations areprimarily directed at physical hazards and the physical effects of workplace hazards.

The structure of the Occupational Health andSafety Act, and the investigation and enforcement mechanisms created by it are poorly suited to dealing with non-physical hazards oreffects.

However important issues of workplace discrimination, harassment or “poisoned environment” are, and however much these may affectthe actual health, safety, or wellbeing of a worker, it is apparent that the legislative treatment of these non-physical “hazards” is differentfrom the legislative treatment of physical hazards. (Abdulkadir at paras 43-44). [66] As recently as 2009, the OLRB in the decision of Vogan v Ten Star Financial Services, [2009] OLRB Rep 458, 2009 CarswellOnt9317, iterated the approach taken in the Meridian case. [67] In December of 2009, amendments to the Ontario OHSA came into effect.

These amendments dealt specifically with workplaceviolence and workplace harassment by including

definitions of workplace violence and workplace harassment in the OHSA. Thelegislation also requires employers to develop policies for dealing with complaints of workplace violence or harassment. The right torefuse work is extended to instances where there are reasonable grounds for fearing workplace violence; however, the same right torefuse work does not extend to workplace harassment. [68] The development of the law in Ontario is similar to some other jurisdictions; some of which have explicitly addressed workplaceviolence and harassment in their legislation while others have addressed only workplace violence. Each jurisdiction that has enacted suchamendments have provided

definitions of workplace violence and/or harassment and remedies to address them. [69] The Safety Act in Nunavut is dated legislation, initially enacted in 1974, and inherited by Nunavut on April 1, 1999. It has notundergone any significant amendments or reviews in some time. It is silent on the issues of workplace violence and harassment. [70] In finding that harassment constituted an unusual danger for the purposes of

section 13 of the Safety Act, the Chief Safety Officeradopted the definition of harassment found in the federal Canadian Human Rights Act, RSC 1985, CH-6. There is no clear reason why

this definition was accepted rather than, for example, the definition found in the Nunavut Human Rights Act, S. Nu. 2003, c.12. This might not be a concern if the

definitions were consistent in all legislation but a review of occupational health and safety legislation that explicitly refers to workplace violence and harassment shows us that the

definitions are not universally accepted. [ 71 ] Generally speaking, the Safety Act provides for an escalation in the response to a workplace hazard, depending upon the danger it poses. Sections 9 through 12 of the Safety Act empower a Safety Officer to carry out an inspection of a workplace to ensure that safety legislation is being complied with. Following an inspection, a Safety Officer can issue directions to an employer and provide a limited amount of time within which the direction must be carried out. A failure to comply with a direction may result in an order that the “place, matter or thing” not be used until the direction is complied with. [ 72 ]

Section 14 of the Safety Act provides for the equivalent of a stop work order if any “place, matter or thing” constitutes a source of imminent danger in the workplace. [ 73 ] It seems clear that an employee subject to harassment could not call upon a Safety Officer to carry out an inspection, nor could a Safety Officer issue an order, as harassment does not constitute a “place, matter or thing” ( ss.9 - 12 , 14 , Safety Act ). [ 74 ] Any rights an employee might have to protect himself against harassment under the Safety Act would have to be found in

section 13, which grants an employee the right to refuse work. [ 75 ] The WSCC and Jenkins both urge the Court to adopt such an

interpretation. They argue that because

section 13 of the Safety Act is not limited to a “place, matter or thing”, the intent of the Legislature was to have a more expansive approach to work refusals than to Safety Officer investigations or stop work orders. [ 76 ] The difficulty I have with this is that such an

interpretation requires a finding that the intent of the Legislature was to force employees who are victims of workplace harassment to immediately exercise what is arguably the most drastic response there is to a workplace danger - that of refusing work. [ 77 ] In determining the

interpretation to be given to legislation, the Court must consider the text of the statute, the context within which it was enacted, and it purposes and objectives. While I understand and appreciate the intentions of the Safety Officers and Chief Safety Officer in coming to the conclusion they did, given the wording of the Safety Act and the historical development of the jurisprudence and the legislation in the area, I am unable to find that their

interpretation falls within the range of reasonable outcomes. [ 78 ] Clearly the attitude to workplace harassment has changed over the years and there is now a recognition that there can be ill effects on both mental and physical wellbeing as a result of harassment. There are many arguments to support the inclusion of provisions regarding workplace violence and harassment in occupational health and safety legislation and other workplace related legislation. Ultimately, however, it is for the Legislature to decide whether or not to address these issues and, if so, how to best go about doing so. V.

CONCLUSION [ 79 ] Is the Safety Act quasi-constitutional in nature? No [ 80 ] Did the Safety Officer lose jurisdiction because a decision was not rendered within the time limits set out in section 13(5) of the Safety Act ? [ 81 ] The standard of review is reasonableness. The Safety Officer did not lose jurisdiction. [ 82 ] Does the Chief Safety Officer's

interpretation of “unusual danger” in

section 13 of the Safety Act meet the applicable standard of

review? [ 83 ] The standard of review is reasonableness. The Chief Safety Officer's

interpretation of “unusual danger” does not fall within the range of possible outcomes. The decision of the Chief Safety Officer on this issue is quashed. Dated at the City of Iqaluit this 16th day of July, 2013 ___________________ Justice S. Cooper Nunavut Court of Justice