Narl Refining Limited Partnership Applicant And: Barry Upshall First Respondent And: Alvin Burt Second Respondent And: Her Majesty the Queen in Right of Newfoundland v. Labrador, 2018 NLSC 163

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : NARL Refining Limited Partnership v. Upshall , 2018 NLSC 163 Date : July 31, 2018 Docket : 201701G7592 Between: Narl Refining Limited Partnership Applicant And: Barry Upshall First Respondent And: Alvin Burt Second Respondent And: Her Majesty the Queen in Right of Newfoundland and Labrador as represented by the Minister of Service NL-Occupational Health and Safety Division Third Respondent Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: May 25, 2018 June 29, 2018

Summary: The Applicant sought judicial review of a decision of the Assistant Deputy Minister of Service NL – Occupational Health and Safety Branch affirming a directive made by an occupational health and safety officer pursuant to the Occupational Health and Safety

Act, R.S.N.L. 1990, c. O-3. The Court ruled that the Applicant did not establish that the language of the officer “upholding” the work refusal was anything morethan an articulation of the implicit finding of the contravention of the Act that underpinned the directive. As to the decision of the ADM to uphold the directive, the Court found that the Applicant did not establish that it had been deniedprocedural fairness. Furthermore, the decision of the ADM was reasonable insofar as it met the requirements of intelligibility,transparency and justifiability, and fell within the range of reasonable outcomes.

The application was dismissed with costs to the other parties (other than the Labour Relations Board). Appearances: Twila Reid and Amanda Whitehead Appearing on behalf of the Applicant Gordon N. Forsyth, Q.C. Appearing on behalf of the First and Second Respondents Suzanne Orsborn Appearing on behalf of the Third Respondent Megan Sheppard Appearing on behalf of the Newfoundland and Labrador Labour Relations Board Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick (Board of Management), 2008 SCC 9 , 2008 S.C.C. 9; Canada(Canadian Human Rights Commission) v.

Canada (Attorney General), 2018 SCC 31 , 2018 S.C.C. 31; Neary v. Portugal Cove-St. Philip’s, 2013 NLCA 47; Director of Labour Standards v. Labour Relations Board, 2015 NLTD(G) 194; R. v St. John’s (City), 2016NLTD(G) 81; Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42. STATUTES CONSIDERED: Occupational Health and Safety Act, R.S.N.L. 1990, c. O-3; Labour Relations Act, R.S.N.L. 1990 L-1;Interpretation Act, R.S.N.L. 1990, I-19.

REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] This application for judicial review relates to a work refusal at the Come by Chance Refinery (the “Refinery”) under theOccupational Health and Safety Act, R.S.N.L. 1990, c. O-3 (the “Act”). Following an investigation, an occupational health and safetyofficer (the “Officer”) issued a decision (the “Officer Decision”) which included a letter report (the “Officer Report”) and four directives(each a “Directive”).

On appeal the Officer Decision was upheld by the Assistant Deputy Minister of Service NL – Occupational Healthand Safety Branch (the “ADM Decision”). [2] At issue are two components of the Officer Decision as affirmed by the ADM Decision. First, the decision to “uphold” theWork Refusal, and second, the issuance of the Directive titled Order 1010122-01 (“Directive #1”). NARL asks the Court to overturn theADM Decision. facts

[ 3 ] Barry Upshall (“Upshall”) and Alvin Burt (“Burt”) are employees of NARL and have been employed at the Refinery since 1992 and 1998, respectively. At all material times, Upshall and Burt (who I will sometimes refer to collectively in this decision as the “Workers”) were employed by NARL as electricians.

Both Upshall and Burt have their journeyman papers as well as First Aid training and Arc Flash training, additional requirements for electricians under the Canadian Electrical Code if certain hazardous conditions are present at the work site. [ 4 ] On December 17, 2015, Upshall and Burt refused to be present for their scheduled shift (the "Work Refusal"). Upshall and Burt claimed that their presence at the Refinery was unsafe and purported to exercise their right to "refuse unsafe work" under

section 45 of the Act . The Work Refusal contained the following "Description of Hazard": Working with insufficiently trained shift electrical personel [ sic ] that may place us and operations personel [ sic ] in unsafe and dangerous situations while responding to emergency calls. [ 5 ] The relationship between NARL and the electricians at the Refinery is governed by a collective agreement. All electricians working at the Refinery fall under the same classification in the collective agreement regardless of the particular

schedule that an electrician is assigned. Depending on work requirements, NARL employs approximately five to twenty electricians at the Refinery in various maintenance tasks. Electricians are generally scheduled to work daytime hours (Monday to Friday, 7:30 am to 6:00 pm), although rotating 12 hour shifts (either 6:00 am to 6:00 pm or 6:00 pm to 6:00 am) are also scheduled.

There is no differentiation between daytime 8-hour shifts and rotating 12-hour shifts in the tasks that may be assigned (whether under the collective agreement or otherwise). [ 6 ] At the material time, Burt refused to work on the basis that he was not adequately trained. Upshall refused to work on the basis that Burt was not adequately trained. Neither Burt nor Upshall had been asked to carry out any specific task. The workers refused to be present for their entire shift. Although Burt and Upshall refused to work that shift, they subsequently worked other shifts at the Refinery.

Procedural history [ 7 ] The Workers purported to exercise their right to refuse unsafe work pursuant to

section 45 of the Act . [ 8 ] The options available to an officer who has investigated a matter and is not satisfied that he or she can advise the worker to return to work are set out in the Act . These include, for example, issuing a stop work order where 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 or near the workplace” (section 27), or an order for remedial measures where the officer is “of the opinion that a person is contravening this Act ” (

section 28 ). [ 9 ] On January 12, 2016, the Officer attended the Refinery and conducted an inspection. Two interim directives issued following that inspection. First, the Work Refusal was “upheld” pending the completion of the Occupational Health and Safety Division’s investigation. Second, documentation was required to be forwarded to the Officer. [ 10 ] Following the completion of the investigation, the Officer issued the Officer Report which “upheld” the Work Refusal and included the four directives.

The Officer Report is dated June 28, 2016 and was provided to NARL on June 30, 2016. [ 11 ] The Officer Report stated that the Work Refusal was upheld “until such time that the workers receive training which includes a practical component involving the specific equipment on site at the Refinery in accordance with the Process Safety Management Code of Practice” (the “Code of Practice” or the “Code”). [ 12 ] The specific wording of Directive #1 is set out below: Order 1010122 – 01 ACT: Occupational Health and Safety 36 - 1a - Codes of Practice The employer shall ensure that all electricians are trained as required by the Process Safety Management Code of Practice, which includes a practical component involving the specific equipment on site at the Refinery. [ 13 ]

Section 32 of the Act provides for a right of appeal from an order issued by an officer. The right of appeal is limited to orders made under sections 27 to 30 and

section 42.2 of the Act . Directive #1 refers only to section 36(1) (

a) of the Act . [ 14 ] Although the Officer Report did not refer to

section 27 to 30 or

section 42.2 of the Act , it stated “an order made by an officer may be appealed, in writing, to the assistant deputy minister within 7 days of the order”. [ 15 ] NARL appealed the Officer Decision by letter dated July 5, 2016 pursuant to the directions of the Officer. The ADM assumed jurisdiction and rendered the ADM Decision on September 22, 2016 denying the appeal. [ 16 ] In rendering the ADM Decision, the ADM advised NARL that it could appeal his decision to the Newfoundland and Labrador Labour Relations Board (the “Board”).

NARL filed an appeal with the Board on October 24, 2016. [ 17 ] The Board issued an order on May 19, 2017 which dismissed the appeal on the basis that it was without jurisdiction to hear the

appeal. On May 29, 2017 NARL sent a formal request for written reasons to the Board pursuant to

section 12 of the Labour RelationsAct, R.S.N.L. 1990 L-1. As of May 25, 2018, the date of the hearing before me, no reasons had been provided by the Board. [18] On June 4, 2018, the Board filed its written decision. The majority found that the Board did not have jurisdiction over thematter and the dissent, by the chair of the Board, would have decided that the Board did have jurisdiction. [19] It is at this stage of the matter that the procedure veers off from the normal path. By section 33(1) of the Act a decision of theADM can be appealed to the Board.

Section 33(3) purports to make the decision of the Board final and not subject to review by theCourt. Of course, the Court retains the inherent jurisdiction to review the decisions of administrative bodies (see, for example, Dunsmuirv New Brunswick (Board of Management), 2008 SCC 9 , 2008 S.C.C. 9, at paragraph 28). But, in this case no one soughtjudicial review of the decision of the Board. NARL, in particular, agreed with and accepted the decision that the Board was withoutjurisdiction to hear an appeal arising out of the Officer’s Decision.

The Province, notwithstanding that it did not agree with the Board’sdecision, decided against seeking judicial review. [20] Consequently, before me is an application by NARL for judicial review of the ADM Decision together with an order declaringthat the Work Refusal was not reasonable and an order in the nature of certiorari quashing Directive #1.

Specifically, NARL seeks: a. an order in the nature of certiorari quashing the ADM Decision; b. an order in the nature of a declaration declaring that the Work Refusal was not reasonable; and c. an order in the nature of certiorari quashing Directive #1. [21] At the May 25, 2018 hearing were represented NARL, the Workers, the Province and the Board, although counsel for theBoard made no submissions.

After the written decision of the Board was issued, I invited the parties back to see if they wished to beheard in respect of that decision as well as the recent decision of the Supreme Court of Canada in Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2018 SCC 31 , 2018 S.C.C. 31 (“CHRC”), that addresses the standard of review bycourts of decisions of administrative bodies. This occurred on June 29, 2018. The parties advised me that no further hearing would berequired. [22] What I must decide, therefore, is the application by NARL for judicial review of the ADM Decision.

The decision of the Boarddeclining jurisdiction to hear the appeal from the ADM Decision is not before me. issues [23] As is always the case in a matter involving judicial review of a decision of an administrative body, the first issue is todetermine the applicable standard of review. [24] I will then examine whether NARL was denied procedural fairness by the Officer or the ADM. [25] Finally, I will determine whether the ADM Decision is sustainable in accordance with the applicable standard of review. the standard of review [26] For the reasons that I will explain below, I have concluded that this matter involves a review of the ADM Decision only, and itdoes not engage a review of the actions of the Officer, except as to how they feed into the decision of the ADM. [27] In CHRC, Gascon, J. for the majority of the Supreme Court of Canada, reaffirmed that when the issue of review involves theinterpretation by an administrative body of its own statute closely connected to its function, the standard of review is presumed to bereasonableness unless the issue falls within one of the four categories of exception identified in Dunsmuir v.

New Brunswick, 2008 SCC9 , 2008 S.C.C. 9. For the most part, only in such cases will the presumption of reasonableness be rebutted and the correctnessstandard of review be applied. None of those exceptions is applicable here. [28] The ADM Decision was made by the ADM of Service NL – Occupational Health and Safety Branch. In doing so the ADM wasinterpreting his home statute which is closely connected to his function.

Consequently, his decision will be reviewed based upon astandard of reasonableness. the legislative regime [29] Employers’ duties under the Act are set out in sections 4 and 5 which provide in part as follows: 4. An employer shall ensure, where it is reasonably practicable, the health, safety and welfare of his or her workers. 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 aresafe 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; […] [ 30 ] Workers’ duties are set out in sections 6 and 7 which provide in part as follows: 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; […] [ 31 ] The right of a worker to refuse work is provided by

section 45 of the Act : 45.

(1) A worker may refuse to 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 in 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. [ 32 ] The powers of investigation under the Act are set out in section 26(1) of the Act : 26.

(1) For the purpose of ensuring compliance with the Act or regulations and an order made under either of them, the assistant deputy minister, or an officer (

a) may, at a reasonable hour and without prior notification, enter and inspect a workplace, with or without the help of other persons, where he or she has reasonable grounds to believe that workers or self-employed persons work or have worked; (

b) may require the production of records, books, plans or other documents that relate to the health and safety of workers or self- employed persons, examine them and remove them temporarily for the purposes of making copies;

(

c) may conduct tests and take photographs or recordings of the work place and an activity taking place at the workplace; (

d) may inspect and take samples of a material, product, tool, appliance or equipment being produced, used or found in or upon the workplace; and (

e) may make examinations and conduct investigations that he or she considers necessary in order to determine the cause and particulars of an accident or illness occurring to a worker or self-employed person that appears to the investigator as having been caused as a result of an activity at the workplace. [ 33 ] The authority of an officer following an investigation is provided by sections 27 to 30 of the Act : 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. 28.

Where the assistant deputy minister or an officer is of the opinion that a person is contravening this Act or the regulations the assistant deputy minister or officer shall, in writing, order that person to take the remedial measures specified in the order within the time stipulated in the order that are necessary to ensure compliance with this Act and the regulations. 29. Where the assistant deputy minister or an officer is of the opinion that a tool, appliance or equipment used by a worker or self- employed person (

a) is not in safe operating condition; or (

b) does not comply with the standards prescribed by the regulations the assistant deputy minister of officer shall, in writing, order the worker or self-employed person to stop using that tool, appliance or equipment and order the employer to withdraw that tool, appliance or equipment from use. 30. Where a tool, appliance or equipment described in

section 29 is being supplied by a supplier or is being sold by a person the assistant deputy minister or officer may order the supplier or other person to stop supplying or selling the tool, appliance or equipment. [ 34 ] The right of appeal to the ADM from an order made by an officer is provided by

section 32 of the Act : 32.

(1) An order made under sections 27 to 30 and

section 42.2 by an officer may be appealed to the assistant deputy minister within 7 days of the order.

(2) An appeal under subsection (1) shall be in writing.

(3) The assistant deputy minister shall begin an investigation of the appeal within 24 hours of its receipt.

(4) The assistant deputy minister may confirm, revoke or vary the order of the officer. [ 35 ] Note that

section 42.2 relates to the authority of the assistant deputy minister or an officer to order that a worker health and safety representative be designated under

section 41 and so has no application to this proceeding. [ 36 ] As we saw above, the right of appeal to the Board from following an appeal under

section 32 is provided by

section 33 of the Act : 33.

(1) An order made under sections 27 to 30 and

section 42.2 by the assistant deputy minister or made by an officer and confirmed or varied by the assistant deputy minister under

section 32 may be appealed to the board within 30 days of the order, or the confirmation or variation of an officer's order by the assistant deputy minister.

(2) The board may confirm, revoke or vary the order of the assistant deputy minister, or his or her confirmation or variation of an officer's order.

(3) The decision of the board is final and not subject to review by a court. [ 37 ] Also of importance to this matter is section 36(1) of the Act which authorizes the minister to require employers to establish or adopt a code of practice: 36.

(1) The minister may require (

a) all employers or principal contractors; (

b) a group or class of employers or principal contractors; or (

c) an employer or principal contractor to establish a code of practice, or adopt a code of practice specified by the minister. [ 38 ] A refusal to work on the part of a worker engages certain procedures and obligations on the parts of the work and the employer. These are set out in sections 46 to 52 of the Act . In particular, there are reporting requirements by the worker in sections 46 and 47: 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. 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. [ 39 ] By

section 48, the worker shall not take advantage of the right to refuse work: 48. A worker shall not take advantage of his or her right to refuse to work under

section 45 without reasonable grounds. [ 40 ] By

section 49, an employer shall not discriminate against a worker who has reasonably refused work under section 45(1): 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 (

a) because of the workers participation in or association with the committee, worker health and safety representative or workplace health and safety designate at the workplace, or because the worker is a worker health and safety representative or workplace health and safety designate; (

b) because the worker has testified or is about to testify in a proceeding or inquiry under this Act or regulations; (

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; or (

d) because the worker has reasonably refused to work under his or her right to do so under

section 45.

[Emphasis added.] [ 41 ] It is with this statutory framework in mind that I will analyze the ADM decision.

First, let us see exactly what it was that the ADM decided. the ADM decision [ 42 ] On February 10, 2014 the Minister forwarded to NARL the Code of Practice required to be adopted by it pursuant to section 36(1) of the Act . [ 43 ] Following the Work Refusal and the subsequent investigation, the Officer found, inter alia , that the refresher training required by the Code of Practice every three years had not been provided and that the management of change process was not implemented for the changes to the electricians’ training program over the years. These were identified as contraventions of NARL’s duties under

section 36 of the Act . [ 44 ] As a result of the findings contained in the Officer Report, the Officer issued the Directives, including Directive #1 which is the subject of this proceeding. [ 45 ] As we saw, NARL appealed the Directives to the ADM. The ADM Decision identified NARL’s grounds for appeal and addressed each one as follows: 1. The Work Refusal and/or the Directives did not identify any “dangerous” task. The issue is that the workers are not able to adequately identify all the hazards associated with their work due to inadequate training, which could expose workers to dangerous situations. In addition, note that

Section 5 (

c) of the Occupational Health and Safety Act states the following “ Without limiting the generality of

section 4, an employer 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” . 2. The Work Refusal and/or Directives did not identify specific training. Please refer to the TO WIT

section in order 1010122-01 of the inspection report which states that “ The employer shall ensure that all electricians are trained as required by the Process Safety Management Code of Practice, which includes a practical component involving the specific equipment on site at the Refinery” . 3. The Directives reference “Shift Electrician” where there is no such position. “Shift” merely refers to scheduling and has no connection with tasks/duties. Upon review of the directives in inspection report 1010122, I did not find a reference to shift electricians.

The only place where the words “ shift electricians ” are found in inspection report 1010122 is where the nature of the work refusal has been included. This was directly taken from NARL’s Refusal to Work form, which was submitted to the Division by NARL. 4. The Directives mandate compliance with the Code which is unreasonable because The Code itself does not apply to electrical work (section 2)”(sic) and OHS has not required compliance with the Code by all employers which is an unreasonable exercise of discretion and/or contrary to the Act .

Sections 2.1 and 2.2 of the Code, which provide details on the application of the code and exemptions to the code, are provided below. 2.1. This code applies to the following:

A process which involves a flammable liquid or gas on site in one location, in a quantity of 4535.9 kg or more except for: • Hydrocarbon fuels used solely for workplace consumption as a fuel (e.g., propane used for comfort heating, gasoline for vehicle refueling), if such fuels are not a part of a process containing another highly hazardous chemical covered by this Code of Practice; • Flammable liquids stored in atmospheric tanks or transferred which are kept below their normal boiling point without benefit of chilling or refrigeration. 2.2 This Code does not apply to: • Retail facilities; • Oil or gas well drilling or servicing operations; or, • Normally unoccupied remote facilities.

Nowhere in

section 2, or any other part of the Code of Practice, does it state that electrical work at a refinery is exempted. Please note that this Code is applicable to all refineries in the Province. 5. The Directives are not reasonable and/or are not supported by the Work Refusal and the information obtained in the investigation. A substantial investigation was carried out including, but not limited to, gathering statements and evaluating training records. All directives are supported by the investigation.

Based on the review conducted, the directives issued as part of the NARL inspection report of June 28, 2016, are confirmed and it is expected that all directives will be complied with, and appropriate notification of compliance provided to the officer. [ 46 ] I will now apply the reasonableness standard of review to the ADM Decision. analysis [ 47 ] Two components of the ADM Decision are being impugned in this case: first, it is suggested that he affirmed the Officer’s decision to uphold the Work Refusal; and, second, that he affirmed the decision of the Officer to issue Directive #1.

I will look at each separately. Before I do so, however, I will address NARL’s allegation that it was denied procedural fairness. Was NARL denied procedural fairness? [ 48 ] The rules of natural justice, or the duty to act fairly, are limitations on the exercise of delegated power imposed by the superior courts as part of their supervisory jurisdiction over administrative action. Questions of procedural fairness require me to make a determination on the basis of “correctness” insofar as no deference is afforded to the administrative body on issues of fairness.

Either procedural fairness was provided or it was not. If it was not, then the decision cannot be sustained ( Neary v. Portugal Cove-St. Philip’s , 2013 NLCA 47 ; Director of Labour Standards v. Labour Relations Board , 2015 NLTD(G) 194). [ 49 ] Essentially, NARL submits that it was not afforded procedural fairness because it was not given an opportunity to be heard. I do not agree. The Officer’s investigation took six months. It was extensive and included having discussions with officials of NARL and receiving written materials from NARL. The record is substantial.

There was no failure to afford procedural fairness to NARL in the course of the investigation by the Officer. [ 50 ] NARL submitted the appeal to the ADM by a three page submission. Although the submission indicates that NARL would be “available to discuss further and to provide additional information on request” it did not seek an oral hearing. The last sentence in the appeal submission indicates that NARL was aware that further submissions might not be received by the ADM before he made his decision. It says: The Directives issued here have far reaching implications to all employers in the Province.

We trust that you will give due and thorough consideration to the issues raised in this appeal.

[Emphasis added.] [ 51 ] I can find no fault in the level of natural justice that was afforded to NARL in the appeal to the ADM. Decision with respect to the Work Refusal [ 52 ] It is unfortunate that the officer used the language of “upheld” in addressing the Work Refusal. The role of an officer is not to adjudicate as to whether a refusal to work purportedly exercised pursuant to

section 45 of the Act is reasonable or not. His role is as set out in

section 26 to investigate the workplace for safety purposes consistent with the objectives of the Act . [ 53 ] Following an investigation an officer may advise the worker to return to work or he may take one of the remedial actions identified in sections 27 to 29 of the Act . The result of the investigation of a workplace by an officer may implicitly indicate that a work refusal was reasonable or unreasonable, but that is not the purpose of such an investigation. [ 54 ] If an officer makes an investigation under

section 26 following a work refusal and advises the worker to return to work pursuant to section 45(1)(c), then implicitly either any safety issue has been resolved to the satisfaction of the officer or the work refusal was unreasonable in the first instance. Similarly, if the officer makes an order pursuant to one or more of sections 27 to 29 then, implicitly, the officer has found the refusal to work to have been reasonable. This is because each of those sections requires the officer to be 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…” (

section 27 ); “a person is contravening this Act or the regulations…” (

section 28 ); or “a tool, appliance or equipment used by a worker [is unsafe]” (section 29). Where the officer, following an investigation, forms such an opinion implicitly he has decided that the worker has refused 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” as provided for in section 45(1) of the Act . [ 55 ] Consequently, the language used in the ADM Decision leads me to conclude that the ADM Decision did not consider NARL’s complaint that the Officer “upheld” the work refusal.

This is implicit in the ADM Decision which addresses the Directives only because it is the Directives that represent the fulfillment of the duties of the Officer. I am satisfied that the ADM Decision would be no different if the Officer had not chosen to “uphold” the work refusal in his report but had simply gone on to issue the Directives with the necessary implications that would arise. [ 56 ] Whether or not a worker’s refusal to work purportedly based upon

section 45 of the Act is reasonable is ultimately a matter between the worker and the employer. By

section 48 of the Act a worker may not take advantage of the right to refuse to work under

section 45 without reasonable grounds. Similarly, by

section 49(

d) an employer may not discriminate against a worker because the worker has reasonably refused to work. Although there is some overlap, the role of an officer operates parallel to the employment relationship between the employer and the worker, the latter of which is governed by the common law, any collective agreement and Provincial labour legislation, including the Act .

If NARL was of the opinion that the Workers were not reasonable in their refusal to work because of the nature or scope of that refusal, then as an employer it could have chosen to discipline the Workers pursuant to the rules governing their relationship. [ 57 ] Officers appointed under the Act are, I assume, generally not legally trained. Notwithstanding this, the Act is written in legal terms and officers must take care that they use language in communications that correspond to their roles and responsibilities under the Act.

They should exercise care not to use language that suggests that they may have overstepped their authority. [ 58 ] Nevertheless, I am satisfied that the ADM Decision was reasonable in choosing not to address the use of language by the Officer that may have suggested that he had the authority to uphold the Work Refusal. The ADM Decision addressed the issue that is properly at the heart of the matter – Directive #1. It was the focus of the ADM’s Decision and will be the focus of my decision as well. Directive #1 [ 59 ] As we have seen, the decision of the ADM was appealed to the Board in accordance with

section 33 of the Act . The Board declined jurisdiction to hear the appeal. But the Board’s jurisdiction and that of the ADM are identical: if the Board did not have jurisdiction then neither did the ADM. [ 60 ] I am left in a quandary because the statutory appeal process has been engaged in this matter but judicial review was not sought from the decision of the final decision maker in the chain of review. In my respectful view, the decision of the Board to decline jurisdiction should have been challenged before this Court if one or more of the parties was unhappy with it.

Such an approach would have been in accordance with the hierarchy of review. As it turns out, however, both NARL and the Workers agree with the majority of the Board that it did not have jurisdiction to consider the matter, albeit for different reasons. The Province, on the other hand, contends that the issuance of Directive #1 was made pursuant to

section 28 of the Act and as a result the ADM, and the Board in turn, had jurisdiction to hear the appeal pursuant, respectively, to sections 32 and 33 . [ 61 ] I appreciate the difficulty in which the parties found themselves. NARL, anxious to have this matter resolved, was content with the decision of the Board, but remained unhappy with the decision of the ADM. The Workers were simply content. NARL, having no complaint with the result of the appeal to the Board naturally would not seek judicial review of its decision.

So, it took a step back and brought this application seeking judicial review of the ADM Decision. The Workers responded to this application. [ 62 ] The Province was content with the decision of the ADM but discontent with the decision of the Board. Yet it did not seek judicial review. I asked counsel for the Province why it did not do so and received a somewhat less than clear reply. It may have been partly because the Board failed to deliver its reasons for so long. It may also have been that the Province thought that NARL had exhausted its remedies.

In any event the Province now asks me to find that Directive #1 was an order under

section 28 of the Act , a matter in respect of which both the ADM and the Board would have had jurisdiction to review on appeal. [ 63 ] Before I give my reasons for finding that Directive #1 was in effect an order made pursuant to

section 28 of the Act , let me first reiterate that because of the procedural peculiarities of this case, the decision of the Board is not before me. Nevertheless, in determining

that the ADM had jurisdiction to consider an appeal of Directive #1, implicitly I am also saying that the Board had jurisdiction to hearthe appeal from the ADM Decision. In so doing, therefore, the result is in implicit agreement with the conclusion of the dissent at theBoard and in disagreement with that of the majority. In doing so, however, I have not analyzed the decision of the Board, which as I havesaid is not before me.

Rather I have taken into account the parties’ respective positions on the application for judicial review of theADM Decision. [64] I therefore find myself in the position where I must address the application that is before me, not the one that ought to be beforeme. In doing so, I have come to the conclusion that Directive #1 was made pursuant to

section 28 of the Act. Let us see why. The nature and purpose of the Act [65] I begin this analysis with consideration of the nature and purpose of the Act and the guiding principles regarding itsinterpretation and application. In R. v St. John’s (City), 2016 NLTD(G) 81, at paragraph 16 Orsborn, J. gave an overview of how the Actshould be interpreted: [16] It is clear that legislation such as the Act must be liberally interpreted and applied. As Sharpe, J.A. said in Ontario (Ministry ofLabour) v.

Hamilton (City) (2002), (ON CA), 58 O.R. (3d) 37 (C.A.) at paragraph 16: 16 The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety ofworkers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislationdesigned to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes andobjectives of the legislative scheme. Narrow or technical

interpretations that would interfere with or frustrate the attainment of thelegislature’s public welfare objectives are to be avoided. [66] A generous

interpretation of the Act is also consistent with the requirements of

section 16 of the

Interpretation Act, R.S.N.L.1990, I-19: 16. Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive theliberal construction and

interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to itstrue meaning. [67] The Act must therefore be “liberally interpreted and applied” having regard to its objective to serve as a “public welfare statuteintended to guarantee a minimum level of protection for the health and safety of workers”. Insofar as “narrow or technical”interpretations of the Act would frustrate this objective, they are to be avoided. [68] So what is the decision that is under review? It is the decision of the ADM that the Officer was reasonable in ordering Directive#1.

Was the ADM Decision reasonable in implicitly finding that Directive #1 was made pursuant to

section 28 of the Act? [69] The ADM Decision could not be reasonable unless Directive #1 was made pursuant to

section 28 of the Act and not section36(1)(a). There is no appeal to the ADM from a requirement by the Minister that an employer adopt a code of practice in accordancewith

section 36 of the Act. [70] NARL says that Directive #1 was made pursuant to section 36(1)(

a) because that is the

section of the Act referred to in the titleto the directive. As we have seen,

section 32 appeals to the ADM are limited to orders of an officer pursuant to sections 27 to 30 andsection 42.2 of the Act. Consequently, the ADM could not reasonably consider the appeal if the Officer made Directive #1 pursuant toSection 36(1)(a). This is the position adopted by the majority of the Board. [71] The Province says that Directive #1 was made pursuant to

section 28 but it relates to the Officer’s opinion that NARL was incontravention of the Code of Practice required under section 36(1)(a). I agree with the Province. Although it may have been better hadthe Officer referenced

section 28 in the title to Directive #1 and referenced section 36(1)(

a) in the body, to overturn the ADM Decisionon this point would permit form to ride roughshod over substance, something that the Court is not prepared to do. The legislature hasentrusted the officers administering the Act with broad investigative powers and considerable discretion in fulfilling their mandate ofpromoting and safeguarding health and safety in the workplaces of the Province.

The exercise of those functions should only beinterfered with in the clearest of cases. [72] The Officer, following the investigation, found in the Officer Report, inter alia, that the refresher training required by the Codeof Practice every three years had not been provided and that the management of change process had not been implemented for thechanges to the electricians’ training program over the years. These were identified contraventions of NARL’s duties under

section 36 ofthe Act. [73] In my view, the form of Directive #1 is akin to an officer finding a specific unsafe work practice and relying on the generalduties of an employer under

section 5 of the Act to underpin the authority to make an order pursuant to one of sections 27 to 29. If section5 was identified in the title to the order and it went on to order a specific remedial measure to be adopted by the employer, then it wouldbe clear enough that the directive was made pursuant to

section 28 or one of the other remedial sections of the Act. What is important isthat the Officer had the authority to require NARL to take remedial measures; it is not important that the remedial power be identified solong as the provision in the Act or regulations being contravened was identified. That is what occurred here. [74] NARL did not assert before the ADM that Directive #1 was made pursuant to

section 36 of the Act and that, as a result, he had

no jurisdiction to consider the appeal. Nevertheless, it is implicit in the ADM Decision that the ADM considered Directive #1 to have been made pursuant to

section 28. The ADM acted reasonably in doing so. [ 75 ] I am satisfied that the ADM Decision must be read as considering Directive #1 to have been made pursuant to

section 28. The Court of Appeal in Workplace Health, Safety and Compensation Commission v. Allen , 2014 NLCA 42 , reminded us that the Court must first seek to supplement the reasons of an administrative body before it seeks to subvert them. Was the decision of the ADM reasonable on the merits of NARL’s appeal? [ 76 ] I am also satisfied that the ADM was reasonable in his decision to affirm Directive #1. The ADM provided careful and well-considered reasons explaining why NARL had not established any of the grounds of appeal set out in its appeal letter.

In coming to his conclusion, the ADM considered the Officer Decision and the materials upon which it was based as well as NARL’s submissions, the Code of Practice and the scheme of the Act . [ 77 ] NARL’s principal complaint is that neither the Officer nor the ADM identified a “process” that the Workers were involved in operating that would engage the training requirements of

section 8 of the Code of Practice. The term “process” is defined as: … any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities.

For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemic could be involved in a potential release shall be considered a single process. [ 78 ] NARL would apply this definition to each function performed by a worker at the Refinery such that electricians would not be governed by the Code of Practice insofar as they do not engage in any activity directly involving a highly hazardous chemical. That may or may not be a reasonable

interpretation of the Code. But I am satisfied that the ADM’s

interpretation was reasonable insofar as he took a broad approach to the application of the Code. That is, in his view the Code applies to the Refinery as a whole which undoubtedly involves highly hazardous chemicals. [ 79 ] The

interpretation by the ADM is supported by the Purpose and Application sections of the Code of Practice. The purpose is “minimizing the consequences of catastrophic release of toxic, flammable, or explosive chemicals”. It is easy to imagine how the failure by an electrician to properly perform his or her functions could cause or contribute to such a release. Furthermore, the Code applies to a process that involves a flammable liquid or gas on site in one location above a certain quantity.

Notably, listed as sites to which it does not apply are retail facilities, oil or gas well drilling or servicing operations or normally occupied remote facilities.

Each of the exceptions is identified as a type of facility and not as a process thereby giving support to the conclusion by the ADM that the Code applied to the NARL operation in its entirety and not only to discrete work functions at the Refinery. [ 80 ] The ADM determined that because electricians working at the Refinery are not exempted from the application of the Code of Practice then to extent that their work is part of the “process” writ large, then NARL was required apply the training requirements of the Code to its electricians. [ 81 ] The training requirements are set out in

section 8.1 of the Code of Practice as follows: 8.1 Initial Training Each individual involved in operating a process, and each individual before being involved in operating a newly assigned process, shall be trained in an overview of the process and in the operating procedures as specified in

section 7 of this code. The training shall include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the assigned tasks [ 82 ] The ADM Decision addressed the specific shortfalls in the NARL training program identified in the Officer Decision as compared to the requirements of the Code of Practice.

It was reasonable for the ADM to conclude that the Code mandated a practical training component rather than simply relying on classroom training. [ 83 ] Overall, the ADM Decision meets the Dunsmuir standard of intelligibility, transparency and justifiability, and falls within the range of reasonable outcomes. The ADM specifically addressed each of the grounds of appeal identified by NARL and was satisfied that none were sustainable. Whether NARL was complying with the Code of Practice is a question of mixed fact and law that falls squarely within the expertise of the ADM.

The ADM was in a good position to consider the practical, legislative and policy considerations at play. disposition [ 84 ] NARL has not established that the language of the Officer “upholding” the work refusal was anything more than an articulation of the implicit finding of the contravention of the Act that was the underpinning of Directive #1. [ 85 ] As to the ADM Decision affirming Directive #1, NARL has not established that it was denied procedural fairness.

Furthermore, the ADM Decision was reasonable insofar as it meets the requirements of intelligibility, transparency and justifiability, and falls within the range of reasonable outcomes. [ 86 ] The application by NARL is dismissed with costs to the other parties (other than the Board) on the basis of Column 1 of the Scale of Costs.

_____________________________ Robert P. Stack Justice