Brian Tucker Applicant And: Newfoundland v. Labrador Labour Relations Board, 2018 NLSC 37

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Tucker vs. Newfoundland and Labrador Labour Relations Board , 2018 NLSC 37 Date : February 19, 2018 Docket : 201701G4101 Between: Brian Tucker Applicant And: Newfoundland and Labrador Labour Relations Board First Respondent And: HSE Integrated Limited SECOND RESPONDENT Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 14, 2018

Summary: The Applicant sought judicial review of a decision of the Newfoundland and Labrador Labour Relations Board that found that the project manager of a principal contractor at the Muskrat Falls construction site was not “another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace” within the meaning of

section 49 (

c) of the Occupational Health and Safety Act . The Court upheld the decision of the Board, holding that the decision met the standard of justification, transparency and intelligibility and that the outcome of the decision fell within a range of possible, acceptable outcomes.

Appearances: Greg French and Karl Dlugosch Appearing on behalf of the Applicant Matthew Moulton Appearing on behalf of the First Respondent Ian Wallace Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53; UniforLocal 2121 v. Newfoundland and Labrador Labour Relations Board, 2016 NLTD(G) 136; MacIsaac and Channel Maintenance Services,2016 NSLB 172; Brunswick Mining & Smelting Corp. v.

Savoie, (NB CA), [1991] 83 D.L.R. (4th) 521, 118 N.B.R.(2d) 196 (NBCA); Wooten v. 323195 Nova Scotia Limited c.o.b. as Forbes Restoration, 2014 NSLB 72; Layman v. Layman Estate, 2016NLCA 13; R. v. Miller, 2011 NLLRB 4; Muskrat Falls Employers’ Association v. Resource Development Trades Council ofNewfoundland and Labrador, 2015 NLTD(G) 150. STATUTES CONSIDERED: Occupational Health and Safety Act, R.S.N.L., 1990 c. O-3; Labour Relations Act, R.S.N.L.1990 c. L-1;Occupational Health and Safety Act, SNB 1983, c O-0.2; Occupational Health and Safety Act, SNS 1996, c 7.

REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] This case involves a decision of the Newfoundland and Labrador Labour Relations Board, the First Respondent (the“Board”), on a preliminary jurisdictional question by which it held that the Applicant cannot avail of the protections againstdiscrimination offered by

section 49(

c) of the Occupational Health and Safety Act, R.S.N.L., 1990 c. O-3 (the “OHS Act”) in hiscomplaint against the Second Respondent, HSE Integrated Limited (“HSE”). The Applicant seeks an order in the way of certiorariquashing the decision and remitting it back to the Board for reconsideration in accordance with direction from the Court. [2] In essence, the Applicant has argued that he acted in compliance with the OHS Act in how he addressed a workplace safetyconcern and should therefore be afforded its protection against discrimination.

HSE argued, and the Board agreed, that by reporting hisconcerns to a principal contractor and not to the Occupational Health and Safety Division of Service NL (the “OHS Division”), theApplicant failed to comply with the mandatory provisions of the OHS Act and is therefore precluded from relying on the protectionsafforded by that legislation. [3] Let me set out the facts that are relevant to the case and the legislation and other law that are applicable to see why I havefound that the decision of the Board is reasonable and will be upheld. facts [4] The Applicant was employed by HSE as a rescue advisor from February 2015 to March 2016.

He was assigned to work at theMuskrat Falls construction site where HSE was contracted to perform certain duties for Astadi Canada Inc. (“Astaldi”), the generalcontractor. The project manager for Astaldi on the site was Don Delarosbil (the “Project Manager”). [5] The Applicant had concerns with health and safety issues at the work site. He reported the issues to his HSE supervisor onsite and to an HSE manager in Mt. Pearl. He was not satisfied with the response. He then reported the matter to Mr. Delarosil. The

Project Manager rectified the situation to the satisfaction of the Applicant. [6] The Applicant did not report the alleged safety risk to the OHS Division, an officer of the OHS Division (an “OHS Officer”),or any other provincial government representative. [7] Astaldi cancelled its contract with HSE shortly after the Applicant made his report to the Project Manager. HSE thenterminated the Applicant’s employment. [8] The Applicant filed a complaint with the Board. HSE made a preliminary objection to the complaint, saying that the Boardwas without jurisdiction to hear it.

The Board filed its decision on the preliminary objection (the “Decision”) following which theApplicant sought a review of the Decision by the Board, which was rejected. [9] The Applicant has now applied to the Court for judicial review of the Decision. issues [10] The Applicant alleges the Board erred by failing to find that the Applicant was protected against discriminatory dismissal unders. 49(

c) of the Act. To determine whether the Board so erred I must determine whether it was reasonable for it to have determined: a. That the procedures set forth in sections 46 and 47 of the OHS Act are mandatory; and b. That reporting his safety concerns to the Project Manager, the Applicant did not report them to “another person concerned with theadministration of the [OHS Act] or the regulations concerning the health, safety and welfare of workers at his or her workplace” andtherefore did not bring him within the ambit of

section 49(

c) of the OHS Act. standard of review [11] I agree with the parties’ position that the appropriate standard of review is that of reasonableness. [12] The Board has exclusive jurisdiction to determine a complaint filed under

section 51 of the OHS Act by virtue of section 17(4)of the Labour Relations Act, R.S.N.L.1990 c. L-1 (the “LRA”): 17. […]

(4) An employee may apply to the board, in accordance with

section 51 of the Occupational Health and Safety Act, for adetermination as to whether the actions of his or her employer or trade union were discriminatory. [13] The Decision is protected by a privative provision in

section 19 of the LRA: 19.

(1) A decision, order, direction, declaration or ruling of the board shall not be questioned or reviewed in a court, and an order shallnot be made or process entered or proceedings taken in a court, whether by way of injunction, declaratory judgment, certiorari,mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the board or its proceedings. [14] Nevertheless, the Court retains an inherent jurisdiction to review decisions of the Board. Under the judicial review frameworkset out in the seminal Supreme Court of Canada decision in Dunsmuir v.

New Brunswick, 2008 SCC 9, a privative clause does notprevent a court from reviewing a decision, it simply signals a requirement that the tribunal’s decision be afforded deference (see, SattvaCapital Corp. v. Creston Moly Corp., 2014 SCC 53, paragraph 104). [15] The Board is a specialized tribunal. On judicial review it is appropriate to defer to the determination of the Board ininterpretation of one of its “home statutes”, that is a statute consigned to its exclusive jurisdiction. Butler, J. stated in Unifor Local 2121v.

Newfoundland and Labrador Labour Relations Board, 2016 NLTD(G) 136: [21] All counsel submit and I agree that the standard of review to [sic] the Board’s decision is reasonableness. The Board is aspecialized decision maker with expertise in carrying out a specific function and in interpreting its home statute. The question posed fallswithin the expertise of the Board (Locke’s Electrical Ltd. v. Newfoundland & Labrador (Labour Relations Board), 2011 NLCA 40). It is therefore appropriate on judicial review to defer to the factual and interpretive determinations of the Board. Canada(Citizenship and Immigration) v.

Khosa, 2009 SCC 12 , at paras. 25-26; and United Brotherhood of Carpenters and Joiners ofAmerica, Local 579 v. S.E.A. Contracting Ltd., 2002 NFCA 34 , 2002 NFCA 3. [16] This judicial review engages an issue of statutory

interpretation concerning the OHS Act. The Board has exclusive jurisdictionto determine complaints filed under

section 51 of the Act. The

interpretation of sections 46, 47 and 49(

c) of the OHS Act is within theexpertise of the Board. [17] But what does a review for reasonableness entail? The approach to be taken was set out in Dunsmuir at paragraph 47: 47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of thefacts and law.

[Emphasis added.] [18] This approach to judicial review has been subject to further refinement since the Dunsmuir decision. The 2016 decision of thisCourt in Unifor addressed its application to the LRA: [22] Unifor suggests that the framework for applying the standard of reasonableness is found at paragraph 15 of the decisionin Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , quoting NewBrunswick (Board of Management) v.

Dunsmuir, 2008 SCC 9 and that courts must show: “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law…" This means that courtsshould not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome. [23] I also agree with this proposition. A reviewing court can draw reasonable inferences, supplement reasons and/or substitute itsown reasoning process to determine whether a tribunal’s outcome was reasonable, even if a tribunal makes a finding onlyimplicitly.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 , at para. 54. [19] In assessing reasonableness, therefore, I must not substitute my own reasons for those of the Board. I may, however, look to therecord for the purpose of assessing the reasonableness of the outcome of the Decision.

Furthermore, I may draw reasonable inferences,supplement the reasons and substitute my own reasoning process to determine whether the Board’s outcome was reasonable, even if theBoard makes a finding only implicitly. the legislative regime [20] This application for judicial review engages several sections of the OHS Act. For ease of reference I will set them out here. [21] We start with several words or expressions that are defined in the OHS Act. They include: 2. In this Act (a) "assistant deputy minister" means an assistant deputy minister appointed under

section 9 of the Executive Council Act for theproper conduct of this Act; (b) "board" means the Labour Relations Board referred to in the Labour Relations Act; (c) "committee" means an occupational health and safety committee referred to in this Act; (d) "council" means the Occupational Health and Safety Council referred to in this Act; (e) "division" means the Occupational Health and Safety Division; (f) "employer" means a person who employs 1 or more workers; […] (i) "officer" means an occupational health and safety officer appointed under this Act and includes a medical practitioner providingservices under

section 20 while he or she is providing those services; (j) "principal contractor" means the person primarily responsible for the carrying out of a project and includes the person who ownsthe thing in respect of which the project is being carried out;

[…] (k.1) "supervisor" means a person authorized or designated by an employer to exercise direction and control over workers of the employer; […] (m) "worker" means a person engaged in an occupation; and (n) "workplace" means a place where a worker or self-employed person is engaged in an occupation and includes a vehicle or mobile equipment used by a worker in an occupation. [ 22 ] We next look at the provisions of the OHS Act that set out the right of a worker to refuse to work in unsafe conditions and the responsibilities that fall upon the worker and the employer in such circumstances. Sections 45 to 51 of the OHS Act provide in relevant part as follows: Right to refuse to work 45.

(1) A worker may refuse to do work that the worker has reasonable grounds to believe is dangerous to his or her health or safety, or the health and safety of another person at the workplace (

a) until remedial action has been taken by the employer to the worker's satisfaction; (

b) until the committee or worker health and safety representative has investigated the matter and advised the worker to return to work; or (

c) until an officer has investigated the matter and has advised the worker to return to work. […] Report to supervisor 46. Where a worker exercises his or her right to refuse to work under

section 45, or where he or she believes that a tool, appliance or piece of equipment, or an aspect of the workplace is or may be dangerous to his or her health or that of other workers at the workplace or another person at the workplace, the worker shall immediately report it to his or her supervisor. Report to division 47. Where a worker has made a report under

section 46 and the matter has not been remedied to the satisfaction of the worker he or she shall report it, either in writing or orally, to the division or an officer. Duty of worker 48. A worker shall not take advantage of his or her right to refuse to work under

section 45 without reasonable grounds.

Discriminatory action prohibited 49. An employer or union shall not take a discriminatory action against a worker by dismissing him or her or by deducting wages, salary or other benefits, or by taking other disciplinary action against him or her […] (

c) because the worker has given information to the Workplace, Health, Safety and Compensation Commission, an officer or another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace; […] […] Allegation of discrimination 51.

(1) Where a worker alleges that his or her employer has taken discriminatory action against the worker for a reason set out in

section 49 , the worker may, […] (

b) apply to the board for a determination as to whether the action was discriminatory. […] [ 23 ] Among the powers conferred to an assistant deputy minister or an officer by the OHS Act is to issue a stop work order.

Section 27 provides: Stop work orders 27.

(1) Where the assistant deputy minister or an officer is of the opinion that work is being carried out in a way that the conditions at the workplace pose an immediate risk to the health and safety of workers engaged in the workplace or other persons at or near the workplace, the assistant deputy minister or officer shall, in writing, order the person at the workplace responsible for the work being carried out (

a) to immediately stop all or a portion of the work and to vacate all or a portion of the workplace; and (

b) before resuming the work, to take the remedial measures specified in the order that are in the opinion of the assistant deputy minister or officer necessary to ensure that the work can be conducted without further risk to the health and safety of the workers or other persons at or near the workplace.

(2) Remedial measures ordered under paragraph (1)(

b) may be taken notwithstanding the stop order.

(3) Where an order to stop work made under paragraph (1)(

a) is in force the employer, subject to the provisions of a collective agreement, may assign a worker directly affected by the order work that is reasonably equivalent to the work that he or she normally performs, but the employer shall continue to pay the worker the wages or salary and grant him or her the benefits that he or she would have received if the order to stop work were not in force.

[ 24 ] Employers’ duties under the OHS Act are set out in sections 4 and 5 : Employers' general duty 4. An employer shall ensure, where it is reasonably practicable, the health, safety and welfare of his or her workers. Specific duties of employers 5. Without limiting the generality of

section 4, an employer (

a) shall, where it is reasonably practicable, provide and maintain a workplace and the necessary equipment, systems and tools that are safe and without risk to the health of his or her workers; (

b) shall, where it is reasonably practicable, provide the information, instruction, training and supervision and facilities that are necessary to ensure the health, safety and welfare of his or her workers; (

c) shall ensure that his or her workers, and particularly his or her supervisors, are made familiar with health or safety hazards that may be met by them in the workplace; (

d) shall, where it is reasonably practicable, conduct his or her undertaking so that persons not in his or her employ are not exposed to health or safety hazards as a result of the undertaking; (

e) shall ensure that his or her workers are given operating instruction in the use of devices and equipment provided for their protection; (

f) shall consult and co-operate with the occupational health and safety committee, the worker health and safety representative or the workplace health and safety designate, where the employer is not the workplace health and safety designate, on all matters respecting occupational health and safety at the workplace; (f.1) shall respond in writing within 30 days to a recommendation of (

i) the occupational health and safety committee at the workplace, (ii) the worker health and safety representative at the workplace, or (iii) where the employer is not the workplace health and safety designate, the workplace health and safety designate at the workplace indicating that the recommendation has been accepted or that it has been rejected, with a reason for the rejection; (f.2) shall provide periodic written updates to (

i) the occupational health and safety committee at the workplace, (ii) the worker health and safety representative at the workplace, or (iii) where the employer is not the workplace health and safety designate, the workplace health and safety designate at the workplace on the implementation of a recommendation accepted by the employer until the implementation is complete;

(f.3) shall consult with (

i) the occupational health and safety committee at the workplace, (ii) the worker health and safety representative at the workplace, or (iii) where the employer is not the workplace health and safety designate, the workplace health and safety designate at the workplace about the scheduling of workplace inspections that are required by the regulations, and ensure that the committee, the worker health and safety representative or the workplace health and safety designate participates in the inspection; and (

g) shall co-operate with a person exercising a duty imposed by this Act or regulations. [ 25 ] Supervisors’ duties under the OHS Act are set out in sections 5.1 and 5.2 : Supervisors’ general duty 5.1 A supervisor shall ensure, where it is reasonably practicable, the health, safety and welfare of all workers under his or her supervision. Specific duties of supervisors 5.2 A supervisor shall (

a) advise workers under his or her supervision of the health or safety hazards that may be met by them in the workplace; (

b) provide proper written or oral instructions regarding precautions to be taken for the protection of all workers under his or her supervision; and (

c) ensure that a worker under his or her supervision uses or wears protective equipment, devices or other apparel that this Act, the regulations or the worker’s employer requires to be used or worn. [ 26 ] Workers’ duties under the OHS Act are set out in sections 6 and 7 : Workers' general duty 6. A worker, while at work, shall take reasonable care to protect his or her own health and safety and that of workers and other persons at or near the workplace. 7. A worker (

a) shall co-operate with his or her employer and with other workers in the workplace to protect (

i) his or her own health and safety,

(ii) the health and safety of other workers engaged in the work of the employer, (iii) the health and safety of other workers or persons not engaged in the work of the employer but present at or near the workplace; (a.1) shall use devices and equipment provided for his or her protection in accordance with the instructions for use and training provided with respect to the devices and equipment; (

b) shall consult and co-operate with the occupational health and safety committee, the worker health and safety representative or the workplace health and safety designate at the workplace; and (

c) shall co-operate with a person exercising a duty imposed by this Act or regulations. Imminent danger 8. A worker shall not (

a) carry out work where there exists an imminent danger to his or her or another worker's health or safety or the health or safety of another person; or (

b) operate a tool, appliance or equipment that will create an imminent danger to his or her or another worker's health or safety or the health or safety of another person. [ 27 ] The duties of a principal contractor under the OHS Act are set out in

section 10 : Duty of principal contractor 10. A principal contractor engaged in a project shall ensure, where it is reasonably practicable for him or her to do so, that employers, workers and self-employed persons performing work in respect of that project comply with this Act and the regulations. the decision [ 28 ] The Decision consists of 39 paragraphs over 14 pages. It is agreed by the parties that the Board accurately set out the material facts.

In addition, the Board reviewed the basis for the preliminary hearing and cited the relevant sections of the OHS Act , with emphasis on sections 46, 47 and 49 (c). [ 29 ] The Board cited in detail the respective submissions of HSE and the Applicant. The Board considered and applied the case law submitted to it. [ 30 ] The Board’s findings at paragraph 33 concisely capture the submissions of HSE and the Applicant and the reason why the Board adopted the position put forward by HSE: 33. The employer argued that in the within case Mr. Tucker failed to follow the process outlined in s. 47 of OHSA .

This stopped the Act and the OHS system from functioning as it should. Mr. Tucker argued that there is no obligation in our Act to “seek enforcement” of the OHSA in order to rely on its terms, and argued that the cases cited by the employer in this instance rise from other jurisdictions, based on legislation that differs from ours. Respectfully, the board disagrees. Our OHSA in Newfoundland and Labrador very clearly places on [ sic ] onus on the employee to report, pursuant to

section 47. The Act spells out in

section 47 a very clear onus on the employee. It is not a discretionary reporting: the employee “ shall ” report. … The Act also clearly defines both the term “division” and “officer”. … [ 31 ] The Board’s findings at paragraph 34 show an appreciation of the scheme of the OHS Act : 34. The Board notes that by reporting a safety incident to a OHS following an employer’s failure to rectify the concern to an employee’s satisfaction, it immediately becomes a matter for independent OHS investigation and remedial orders, if necessary.

This allows for the immediate or very timely identification of a workplace hazard by an independent outside entity which can then be remedied if found to be a hazard. In overstepping the OHS provisions and going to the project manager the employee not only did irreparable damage to the employer’s business relationship with the project manager (the contract was cancelled) but more importantly from a safety standpoint, it ultimately resulted in nothing being addressed, from an OHS perspective, with that employer or that worksite.

[ 32 ] The Board’s conclusion is set out at paragraph 37: 37. The complainant sought damages against his employer for an alleged wrongful termination. Having failed to invoke the Occupational Health and Safety Act , the applicant could not rely on the protections of that Act in order to assist him. While it is trite to say that safety is everybody’s business, the applicant had a duty under the OHSA to report his serious concerns to WHSCC or OHS or an officer or another person concerned with the administration of the Occupational Health and Safety Act . He failed to do so.

He cannot now rely on the protections of the Act when he has failed to discharge his duty to report under s. 47. [ 33 ] The Board determined that because the Applicant did not report the alleged safety risk as required by

section 47 of the OHS Act then he could not avail of the protection against discriminatory dismissal provided by

section 49 (c). the applicant’s position [ 34 ] The Applicant’s main argument is that the Board erred because it based its decision on precedents from Nova Scotia and New Brunswick where the legislation differs from the OHS Act . [ 35 ] As we saw above,

section 49 of the OHS Act states that an employer shall not take a discriminatory action against a worker by, inter alia , dismissing him “because the worker has given information to the Workplace, Health, Safety and Compensation Commission, an officer or another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace” (emphasis added). [ 36 ] The Applicant submits that there is no requirement to follow any specific procedure to receive protection under

section 49. Instead, he submits, it protects anyone who gives information regarding the welfare of workers. His position is that, unlike in Nova Scotia and New Brunswick, nowhere in the Newfoundland and Labrador legislation does it state that a prescribed process must be followed in order to avail of the procedure outlined in

section 51 to enforce the protection provided by

section 49(c). [ 37 ] In contrast, the Applicant submits, the New Brunswick Occupational Health and Safety Act , SNB 1983, c O-0.2 (the “ NB OHSA ”), states: 24(1) No employer or union shall: (

a) take any discriminatory action against an employee, or (

b) threaten to take any discriminatory action against an employee or intimidate or coerce any employee, because the employee has sought the enforcement of this Act, the regulations or an order made in accordance with this Act or the regulations, or has acted in compliance with this Act , the regulations or an order made in accordance with this act or the regulations or has sought enforcement of the Smoke-free Places Act or the regulations or an order made under that Act as that Act or the regulations or orders under that Act relate to a place of employment under this Act. [Emphasis added] [ 38 ] Similarly, submits the Applicant, the Nova Scotia Occupational Health and Safety Act , SNS 1996, c 7 (the “ NS OHSA ”) states at section 45(2) : 45(2) No employer or union shall take, or threaten to take, discriminatory action against an employee because the employee has acted in compliance with this Act or the regulations or an order or direction made thereunder or has sought the enforcement of this Act or the regulations or, without limiting the generality of the foregoing, because: (

a) the employee has given information to the committee, a representative, an officer or other person concerned with the administration of this Act or the regulations with respect to the health and safety of employees at the workplace, unless the employer or union, as the case may be, establishes that such action is solely motivated by legitimate business reasons. [Emphasis added] [ 39 ] The Applicant submits that in both the NB OHSA and the NS OHSA the protections against discipline extend only to employees who follow the procedures prescribed therein. In Newfoundland and Labrador, argues Mr.

Tucker, if he did not follow a provision of the OHS Act then he could have been sanctioned by prosecution for an offence under

section 67 . He should not, however, be subject to denial of his protection under

section 49 . [ 40 ] The Applicant submits that the Project Manager for Astaldi is “another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace” for the purposes of

section 49(

c) of the OHS NL. This submission is based upon

section 10 of the NL OHSA , which, as we saw above, states: 10. A principal contractor engaged in a project shall ensure, where it is reasonably practicable for him or her to do so, that employers, workers and self-employed persons performing work in respect of that project comply with this Act and the regulations.

[41] The Applicant argues that he did not need to call the OHS Division because the matter was resolved after he spoke to theProject Manager. He submits that although his next step would have been to contact the OHS Division, this became unnecessary becausehis concerns had been addressed.

This, he submits, is consistent with the ruling of the Nova Scotia Labour Board in MacIsaac andChannel Maintenance Services, 2016 NSLB 172. [42] The Applicant submits that it would be unreasonable to find that, because he did not call the OHS Division but instead told theAstaldi Project Manager of his concerns, he loses the protection of the OHS Act. He describes the scenario as follows: the Applicant is ona major project construction site; he has what is in his opinion a valid safety concern; he reports it and the issue is remedied.

He arguesthat there was no requirement that he wait to access a telephone or email to contact the OHS Division. According to the Applicant, heacted in an appropriate manner, and deserves the protections provided by the OHS Act. the SECOND respondent’s position [43] HSE submits that the Board’s reference to case law based on the NS OHSA and the NB OHSA in making its decision wasreasonable. [44] According to HSE,

section 47 provides, with regard to the

definitions of “division” in

section 2(

e) and “officer” in

section 2(i),that failing resolution by the supervisor under

section 46, the report is to be made to the OHS Division or an OHS Officer.

Section 49(c)provides for protection against reprisal where such a report is made. [45] HSE submits that the Board was acted reasonably when it relied upon the New Brunswick Court of Appeal decision inBrunswick Mining & Smelting Corp. v. Savoie, (NB CA), [1991] 83 D.L.R. (4th) 521, 118 N.B.R. (2d) 196 (NBCA)and the Nova Scotia Labour Relations Board decisions in Wooten v. 323195 Nova Scotia Limited c.o.b. as Forbes Restoration, 2014NSLB 72 and MacIssac.

This, it says, is because the NB OHSA and NS OHSA both prohibit discriminatory dismissal “because theemployee has sought the enforcement of this Act” or “has acted in compliance with this Act”. HSE submits that the absence of the latterlanguage does not distinguish these sections from s. 49(

c) of the OHS Act. Rather, it submits, this is merely descriptive of the reportingrequirement in

section 47. [46] Section 45(2) of the NS OHSA provides that “without limiting the generality of the foregoing” protection of a worker isprovided where “(

f) the employee has given information to the committee, a representative, an officer or other person concerned with theadministration of this Act or the regulations …”. This, says HSE, mirrors the language of

section 49(

c) of the OHS Act. HSE submitsthat the statutes of all three provinces are fundamentally the same. [47] HSE points to the Board’s determination in paragraph 33 of the Decision that the reporting requirement under

section 47 ismandatory. It then points to the Board’s rationale for that finding as set out in paragraph 34 of the Decision. [48] To this end, HSE also submits that the Board’s determination that the Applicant’s report to the Project Manager was not to“another person concerned with the administration of the Act or regulation concerning the health, safety and welfare of workers at his orher workplace” as provided for in

section 49(

c) is also reasonable. [49] It is the submission of HSE that the Board’s determination that the Applicant was denied protection under s. 49(

c) because ofhis failure to comply with

section 47 of the OHS Act is reasonable and satisfies the Dunsmuir criteria. anaylsis [50] After carefully reviewing the Decision and the submissions of both parties, I have decided that I prefer the position of HSE tothat of the Applicant. In Layman v.

Layman Estate, 2016 NLCA 13, the Court of Appeal has reaffirmed that Dunsmuir continues togovern the concept of “reasonableness”: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of thefacts and law. [Emphasis added.] [51] In my review of the Decision, therefore, I am concerned with the existence of justification, transparency and intelligibilitywithin the Board’s decision-making process. I am also concerned with whether the outcome of the Decision falls within a range ofpossible, acceptable outcomes which are defensible in respect of the facts and law.

Was the Decision Reasonable? [52] The Decision canvasses the respective positions of the parties, the legal arguments advanced by each of them (including thestatutory and case law authorities they presented) and provides detailed reasons why the Board came to its conclusion. The Boardjustified the outcome of the Decision in a manner that is both transparent and intelligible. [53] I will now turn my attention to the true issue here – does the outcome of the Decision fall within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law?

[ 54 ] I find that it was reasonable for the Board to conclude that

section 47 of the OHS Act made mandatory that a worker report to the OHS Division or an OHS Officer following the failure or refusal of his supervisor to satisfactorily remedy a safety concern. The language of sections 46 and 47 permits such a conclusion as a reasonable outcome. Both sections use the word “shall” and the sections provide a progressive escalation of safety concerns from the worker to his employer and then, if necessary, to the OHS Division. [ 55 ] The Decision comprehensively sets forth the respective positions of the parties on this issue in paragraphs 21 to 33.

In particular, it addressed the Applicant’s position respecting the differences in language between the NS OHSA and the NB OHSA and the Newfoundland and Labrador legislation as well as their similarities. It was reasonable for the Board to adopt the reasoning from cases in Nova Scotia and New Brunswick. Although the legislation in those jurisdictions is not worded identically to the OHS Act , they do have complementary regimes and mandatory reporting issues in common. [ 56 ] The Board concluded as regards the position put forward by the Applicant: 33. […] Respectfully, the board disagrees.

Our OHSA in Newfoundland and Labrador very clearly places on [ sic ] onus on the employee to report, pursuant to

section 47…The Act spells out in

section 47 a very clear onus on the employee. It is not a discretionary reporting: the employee “ shall ” report. [ 57 ] Furthermore the Board provided a policy based rationale for its conclusion. Paragraph 34 of the Decision provides: 34. The Board notes that by reporting a safety incident to OHS following an employer's failure to rectify the concern to the employee's satisfaction, it immediately becomes a matter for independent OHS investigation and remedial orders, if necessary.

This allows for the immediate or very timely identification of a workplace hazard by an independent outside entity which can then be remedied if found to be a hazard.

In overstepping the OHS provisions and going to the project manager the employee not only did irreparable damage to the employer's business relationship with the project manager (the contract was cancelled) but more importantly from a safety standpoint, it ultimately resulted in nothing being addressed, from an OHS perspective, with that employer or that worksite. [ 58 ] This then brings us to the Applicant’s complaint that he should be able to rely on the protection from termination provided in

section 49(

c) of the OHS Act because he reported his concerns to the supervisor of the principal contractor Astaldi, that is, the Project Manager. The Applicant says that by virtue of

section 10 of the OHS Act , the Project Manager was “another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace”. The Board acknowledged the Applicant’s argument with respect to the “another person” language in

section 49(c). It then identified HSE’s response at paragraph 25 of the Decision: 25. For the reasons articulated above, the employer argued that the project manager of Astaldi is not a representative of WHSCC or OHS and is therefore not another person concerned with the administration of the Act . While that person may, in his role as project manager, be concerned about project safety, he is not a person concerned with the administration of the Act within the context of the OHSA . [ 59 ] As to the Applicant’s position, at paragraph 35 the Board explained its rationale for deciding against him: 35.

Concerning to the Board was Mr. Tucker's argument throughout his presentation that he didn't need to engage the Act in order to protect the safety of the workers at his job site — he instead went to the Astaldi site supervisor. The Board is concerned that if the "serious" safety allegations Mr. Tucker had about this employer were true (there has been no determination of these allegations) then by failing to report this "serious" safety concern to OHS, he has now allowed this employer to get by without being properly investigated or ordered to take corrective measures as to how it conducts its business.

If the employee had reported it, there would have been an OHS investigation, a potential stop work order, and if the investigation determined that a safety violation occurred then corrective measures would have been prescribed, thereby making that job site and future job sites safer. [ 60 ] The analysis in the Decision demonstrates that the Board was alive to the specific issue raised by the Applicant. It identified the counter-position of HSE in paragraph 25.

The context of the Decision as a whole, and the conclusion reached by the Board, makes clear that it rejected the Applicant’s argument for a broad reading of

section 49(

c) and adopted the narrow reading advocated by HSE. [ 61 ] The Board concluded by adopting the reasoning of the Nova Scotia case cited by the HSE that by not complying with

section 47 after the employer failed to rectify the situation following his

section 46 report that the occupation health and safety process was compromised as a result. That is, the Board held that had the matter been reported as required by

section 47, then the Applicant’s concerns would have been evaluated and addressed properly. If his concerns had merit then appropriate steps could have been taken vis- à-vis HSE, including, for example, issuing a stop work order pursuant to

section 27. By his not doing so, the occupational health and safety regime was prevented from operating as it should. This may have resulted in the employer continuing unsafe practices in other workplaces. Effectively, the Board decided that for the purposes of sections 46 and 47, the OHS Act is a closed system. It held that to afford the Applicant the protection of

section 49(

c) where he had not complied with

section 47 “would ignore the fact that he effectively prevented the tools the Act offers from being used to make the workplace safer”. [ 62 ] The language used by the Board in paragraph 37 of the Decision must therefore be seen as acceptance of the position espoused on behalf of HSE. To repeat, paragraph 37 says in part: 37. While it is trite to say that safety is everybody’s business, the applicant had a duty under the OHSA to report his serious concerns to WHSCC or OHS or an officer or another person concerned with the administration of the Occupational Health and Safety Act . He failed to do so. [Emphasis added] [ 63 ] Although the Board does not expressly state that the language in

section 49(

c) is limited to persons who are involved in the

administration of the workers’ compensation and occupational health and safety regimes to the exclusion of those who are merely under a duty to be concerned with safety at the workplace, it is necessarily inferred from its ultimate conclusion. [ 64 ] Before the Board and at the hearing before me, the Applicant referred to the earlier decision of the Board in R. v. Miller , 2011 NLLRB 4 , where an employee of the Department of Government Services reported a safety concern to the deputy minister of the department, rather than first drawing it to the attention of his supervisor.

The decision turned on whether the matter was an appropriate one for the grievance procedures under a collective agreement rather than an application to the Board pursuant to

section 51 of the OHS Act . The Board held that the deputy minister of the department responsible for administering the OHS Act was “another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace” within the meaning of

section 49 (

c) of the OHS Act . That case was not concerned with the operation of sections 46 and 47 of the OHS Act as they intersect with

section 49 (c). The analysis by, and ultimate conclusion of, the Board as to the status of the deputy minister for the purposes of

section 49 (

c) in Miller is, however, consistent with its finding regarding the Project Manager in this case. [ 65 ] I infer from the Decision that the Board considered the duties of principal contractors as set out in

section 10 of the OHS Act to be general safety related duties and not specific responsibilities that would make such persons “concerned with the administration of the [ OHS Act ] or the regulations concerning the health, safety and welfare of workers at his or her workplace”. Consequently, based upon the record, I have concluded that the Board was not convinced that the duties imposed upon principal contractors by

section 10 of the OHS Act elevated them to the category of persons contemplated by

section 49 (c). [ 66 ] In this regard, I note the statement in Unifor quoted above that a reviewing court can draw reasonable inferences, supplement reasons and substitute its own reasoning process to determine whether a tribunal’s outcome was reasonable, even if a tribunal makes a finding only implicitly. This principle is summed up in the reminder by Orsborn, J. in Muskrat Falls Employers’ Association v. Resource Development Trades Council of Newfoundland and Labrador , 2015 NLTD(G) 150, at paragraph 18, that: 18.

"Reasonable" means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them . [Emphasis in the original] [ 67 ] Based upon the foregoing, I am satisfied that the Board came to an outcome that falls within the range of possible, acceptable outcomes that are defensible in respect of the facts and law.

I am not charged with determining whether the outcome suggested by the Applicant would also have been reasonable and I make no finding in that regard. Inherent in a reasonableness review, however, is that in any given case there may be more than one possible and acceptable outcome. In the circumstances of this case, because the outcome adopted by the Board meets the test of reasonableness it will not be disturbed by me. disposition [ 68 ] The application for certiorari is dismissed with costs to HSE based upon Column 3 of the Scale of Costs. _____________________________ Robert P. Stack Justice