Neustaedter v Alberta Labour Relations Board, 2023 ABKB 294

Court of King’s Bench of Alberta Citation: Neustaedter v Alberta Labour Relations Board, 2023 ABKB 294 Date: 20230516 Docket: 2101 09589 Registry: Calgary Between: Don Neustaedter Applicant - and - Ron Lawson and Alberta Labour Relations Board Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09590 Registry: Calgary Between: Mike O’Neill Applicant - and - Ron Lawson and Alberta Labour Relations Board Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09591

Registry: Calgary Between: Mike Principalli Applicant - and - Ron Lawson and Alberta Labour Relations Board Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09592 Registry: Calgary Between: Volker Stevin Contracting Ltd Applicant - and - Ron Lawson and Alberta Labour Relations Board Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Docket: 2101 09594 Registry: Calgary Between: James Wallace Applicant - and -

Ron Lawson and Alberta Labour Relations Board Respondents - and - Minister of Justice and Solicitor General of Alberta Intervenor Corrected judgment: A corrigendum was issued on May 16, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice D.A. Labrenz _______________________________________________________ I. Introduction [ 1 ] This judicial review arises out of a tragic accident that resulted in a workplace fatality.

Fundamentally, what is at issue is the authority of Occupational Health and Safety [“OHS”] to investigate that fatality by compelling certain persons to submit to interviews. [ 2 ] Briefly stated, the individual Applicants refused to submit to such interviews and the corporate Applicant, Volker Stevin Contracting Ltd [“VSC”] refused to facilitate them. An administrative penalty was assessed against each of the Applicants in respect of those refusals. [ 3 ] The Applicants appealed those administrative penalties.

The Alberta Labour Relations Board [the “ALRB”] heard and dismissed the appeals and the Applicants have sought judicial review of that dismissal. II. Background [ 4 ] On October 2, 2019, the Applicant Mr. O’Neill and another VSC employee were at a work site in Airdrie conducting inspections on storm drain catch basins in a residential area. Mr. O’Neill was driving a VSC truck. The other VSC employee exited the truck to begin work. Mr.

O’Neill saw a vehicle approaching from behind and pulled the truck forward, running over and fatally injuring his work colleague. [ 5 ] Pursuant to its legislative mandate, OHS began to investigate the accident. On January 23, 2020, OHS Officer Katya Ponich requested interviews with Mr. O’Neill and the Applicant Mr. Neustaedter, who was employed as VSC’s Safety Representative, and tragically happened to be on the phone with Mr. O’Neill when the fatal accident occurred. Interviews were arranged for February 11, 2020. [ 6 ] Officer Ponich attended at VSC’s office as scheduled and met with Mr. O’Neill and Mr.

Neustaedter; they were accompanied by Mr. Smith, who introduced himself as counsel for VSC. Officer Ponich advised that OHS did not permit counsel to attend interviews and, in response, Mr. Smith refused to allow Mr. O’Neill and Mr. Neustaedter to be interviewed in his absence. [ 7 ] On March 3, 2020, OHS served VSC with written correspondence that sought to require Mr. O’Neill and the Applicant Mr. Principalli, who was VSC’s Safety Manager, to attend in person interviews on March 5, 2020 at the office of the OHS. OHS additionally served VSC with letters requiring Mr. Neustaedter and the Applicant Mr.

Wallace, VSC’s General Manager, to similarly attend interviews on March 10, 2020. I will refer to the individual Applicants hereafter as the “VSC Employees”. [ 8 ] On March 5, 2020, Mr. Smith wrote to OHS alleging that it did not have authority to require the VSC Employees to attend the scheduled interviews and further advised that they would not attend in Mr. Smith’s absence. [ 9 ] On March 16, 2020, OHS served VSC with orders issued under s. 59 of the Occupational Health and Safety Act , SA 2017, c O-2.1 [the “ OHSA ”] requiring the VSC Employees to attend video interviews on March 31, 2020.

I should note that, although not having

any relevance to my decision, that this version of the OHSA has been replaced by another version in December of 2020. [ 10 ] On March 30, 2020, Mr. Smith wrote to OHS asserting that the VSC Employees had no information that could be lawfully requested by OHS and reiterating that OHS had no authority to interview the VSC Employees. [ 11 ] On April 8, 2020, the Respondent Officer Ron Lawson served VSC and Mr.

Smith with a notice alerting that he was commencing an investigation into whether VSC had contravened s. 54 of the OHSA by interfering with OHS’ attempts to interview the VSC Employees and whether an administrative penalty was warranted should such an interference be established. [ 12 ] On April 9, 2020, OHS wrote to each of the VSC Employees detailing its authority to collect information and conduct interviews in respect of a workplace incident. [ 13 ] On April 15, 2020, Mr.

Smith wrote to Officer Lawson asserting that there was no basis for an administrative penalty against VSC and that the legislative provisions authorizing OHS to collect information, conduct interviews, and issue administrative penalties, were unconstitutional. [ 14 ] On April 30, 2020, Officer Lawson served Mr. Smith and each of the VSC Employees with a notice stipulating that OHS was considering administrative penalties for failure to attend interviews and asking for submissions. Officer Lawson sought submissions from VSC on May 6, 2020. [ 15 ] On May 13, 2020, Mr.

Smith wrote to Officer Lawson, once again taking the position that the OHSA does not authorize OHS to require attendance at an interview and making the argument that OHS’ investigative authority is unconstitutional. [ 16 ] On May 25, 2020, Officer Lawson wrote to Mr. Smith and to each of the VSC Employees requesting confirmation that they refused to attend interviews. [ 17 ] On May 28, 2020, Officer Lawson wrote to VSC requesting additional information as to its involvement in the VSC Employees’ refusal to attend interviews. [ 18 ] On May 28, 2020, Mr.

Smith wrote to Officer Lawson reiterating his position that OHS had no authority to require the VSC Employees to attend interviews and further advising that the VSC Employees had no further information to provide to OHS. On June 4, 2020, Mr.

Smith wrote to Officer Lawson arguing that VSC is not required to facilitate interviews with the VSC Employees. [ 19 ] On July 6, 2020, Officer Lawson issued an administrative penalty of $5000 against VSC for contravention of s. 54 of the OHSA and administrative penalties of $1000 against each of the VSC Employees for contravention of s. 53(2) of the OHSA and failing to comply with an order under s. 59 of the OHSA . [ 20 ] On July 27, 2020, pursuant to s. 71(2) (

b) of the OHSA , VSC and the VSC Employees appealed the issuance of these administrative penalties. [ 21 ] Each side provided written argument and on May 31, 2021, an oral hearing was held before a single vice-chair of the ALRB. [ 22 ] On July 20, 2021, the ALRB issued a decision confirming the administrative penalties against VSC and the VSC Employees [the “ALRB Decision”]. III. Preliminary Issue re Style of Cause [ 23 ] Pursuant to leave previously granted by a chambers justice, counsel for OHS as a preliminary issue, questioned the appropriateness of the style of cause.

The Applicants in addition to naming the ALRB, personally named Officer Lawson as a Respondent. OHS argues that it is inappropriate for Officer Lawson to be named in his personal capacity and requests that the style of cause be amended. Counsel identified the authority to substitute a party under Rule 3.75(2)(

b) of the Alberta Rules of Court as follows: 3.75(2) On application of a party or person, the Court may order that a person be added or substituted as a party to the action, ... (

b) in the case of an application to add or substitute a person as a respondent, or to remove or correct the name of a party, if the Court is satisfied the order should be made. [ 24 ] Counsel for OHS argues that Officer Lawson at all times acted as an officer of OHS and the administrative penalties that he issued were made in the ordinary course of his duties. Counsel cited s. 91 of the OHSA , repeated below, which provides that no action or proceeding lies against an OHS officer for anything done in good faith in the exercise of his duties.

Counsel further proposed that the style of cause be amended to remove Officer Lawson and substitute “His Majesty in Right of Alberta as represented by Occupational Health and Safety” as a respondent. [ 25 ] Neither the Respondent, the Minister of Justice and Solicitor General of Alberta [the “Minister”], nor the ALRB took any position. The Applicants did not mention it in their brief. In argument before me, counsel for the Applicants made the following submission: I am not sure what exactly the amendment is. My understanding of a judicial review is in the nature of certiorari or mandamus.

You do name the person rather than the office. I have no objection to the person being named as an Occupational Health and Safety officer. I don’t think that changes his status in the style of cause.

But the department, Occupational Health and Safety, doesn’t legally exist. It’s not a legal entity. If the attempt is to have Occupational Health and Safety somehow named as a party to a judicial review, that would not be appropriate; and I am not sure if they’re trying to get the Minister named instead of Mr. Lawson. But the officer who was – who initially made – sorry, levied the administrative penalties was Ron Lawson; and it’s quite clear that he was acting as the officer of the Occupational Health and Safety. Although if he acted outside his jurisdiction and acted not in good faith, then he’s not protected.

So, it is important that the distinction between the department, the Minister and the particular officer be maintained. [ 26 ] There is no evidence before me to suggest that Officer Lawson acted in any manner other than in good faith and in furtherance of his duties. That being the case, I am satisfied that the style of cause in this matter should be amended as proposed by counsel for OHS. Counsel are directed to include this amendment when finalizing the terms of the judgment roll. IV.

Applicable Legislation [ 27 ] The following provisions of the OHSA are relevant to this matter. 1 In this Act (a) “administrative penalty” means an administrative penalty required to be paid under section 68(1); (b) “appeal body” means the appeal body referred to in section 71(1); ... (jj) “officer” means a Director or a person appointed under

section 42 as an occupational health and safety officer; 2 The purposes of this Act are ... (

b) to prevent work site incidents, injuries, illnesses and diseases, (

c) the protection of workers from factors and conditions adverse to their health and safety, 51(1) For the purposes of this Act, an officer may ... (

j) interview and obtain statements from persons at the work site or persons not located at the work site who have information related to the health and safety of workers at the work site. 53(2) Every person present when an injury or incident occurred or who has information relating to the injury or incident shall, on the request of an officer, provide to the officer any information respecting the injury or incident that the officer requests.

(7) A statement given under this

section is not admissible in evidence for any purpose in a trial, public inquiry under the Fatality Inquiries Act or other proceeding except (

a) to prove non-compliance with this

section in an action under this Act, 54 No person shall interfere with or in any manner hinder an occupational health and safety officer or a police officer who is exercising powers or performing duties or functions under this Act. 59(1) When an officer is of the opinion through an inspection under

section 51 or an investigation under

section 53 that a person is not complying with this Act, the regulations or the OHS code, the officer shall take steps to ensure compliance, including, where appropriate, writing an order to the person to take such measures specified in the order, within the time limits specified in the order, as the officer considers necessary to ensure such compliance.

(2) An order must (

a) cite the contravened provision of this Act, the regulations or the OHS code, (

b) state the reasons for the officer’s opinion, (

c) require the person to take the measures within a period specified by the officer in the order, and (

d) state any other terms and conditions the officer determines are appropriate. 68(1) If an officer is of the opinion that a person (

a) has contravened a provision of this Act, the regulations or the OHS code, ... the officer may, by notice in writing given to the person, require the person to pay to the Crown an administrative penalty in the amount

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

(2) A person ... (

b) who is given a notice of administrative penalty may appeal the ... administrative penalty ... to the appeal body. ...

(4) After considering the matter being appealed, the appeal body may by order ... (

b) in the case of an appeal from an administrative penalty, confirm, revoke or vary the administrative penalty. 72(13) An order of the appeal body may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court of [King’s] Bench and served on the appeal body no later than 30 days after the date of the order. 91 No action or proceeding lies or shall be commenced against the Crown, the Minister, a Director, an officer, the appeal body, an appeal body member or a staff member of the appeal body for anything in good faith done, caused or permitted or authorized to be done, attempted to be done or omitted to be done by that person or by any of those persons pursuant to or in the exercise or supposed exercise of any power conferred by this Act, the regulations or the OHS code or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act, the regulations or the OHS code.

V. Constitutionality Arguments [ 28 ] In their Notices of Appeal filed with the ALRB, VSC and the VSC Employees set out the following constitutional issue: The statutory provisions for assessing Administrative Penalties are unconstitutional and violate a person’s right to a fair trial before conviction or imposition of any penalty.

Any proceedings under those statutory provisions are void. [ 29 ] Though not expressly identified as a constitutional issue, the Notices of Appeal also set out the following ground: OH&S officers do not have the power to arrest or otherwise detain any person and therefore cannot compel anyone to attend at a particular place and time for an interview. There are no words in the OHS Act that can be interpreted to grant that power to an officer. It is not possible to obstruct an unlawful act much less an attempted unlawful by an officer. A.

Notice [ 30 ] The ALRB held that it had the authority to determine constitutional questions pursuant to the Designation of Constitutional Decision Makers Regulation , Alta Reg 69/2006 and the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3 (the “ AJPA ”). Nevertheless, the ALRB declined to address the constitutional ground of appeal because the Applicants had not given the appropriate notice to the Attorney General of Canada and the Minister of Justice and Solicitor General of Alberta as required by the AJPA .

The ALRB found that it could not determine a question of constitutional law where such notice had not been provided. [ 31 ] During argument before me, the Minister advises that he did not receive notice of a constitutional question. The Minister argues that the ALRB’s finding that it could not determine a constitutional question in the absence of notice is entitled to deference. The Minister fairly states that courts generally are reluctant to consider such questions on judicial review issues that were not properly raised before the tribunal.

This concern is appropriate because the responding parties likely suffer prejudice by not having the opportunity to adduce evidence in the first instance. [ 32 ] With respect to constitutional questions specifically, the Minister refers to Ernst v Alberta Energy Regulator , 2017 SCC 1 , and more particularly para 99, the Supreme Court’s statement that constitutional notice provisions serve the “vital purpose” of ensuring that a law is not declared unconstitutional without the government having been given a fulsome opportunity to defend it. [ 33 ] For their part, the Applicants argue the following in their legal brief: Guindon also addresses the issue of whether the Applicants should be prevented from advancing constitutional arguments on the grounds that the Attorney General was not notified.

This case concerns only Alberta legislation. The AP were levied by this government and on the resulting appeal to the ALRB that same government represented Lawson, OHS and the ALRB, all creations of the same Provincial Government. It cannot be argued that the Attorney General for Alberta did not know of the possibility that the AP would be attacked on Charter grounds. At the level of Lawson’s initial assessment the constitutional requirements were not triggered, ironically because Lawson is not a Court of any kind.

For the Alberta government to now claim prejudice when the constitutional argument is raised at the ALRB, so say “without notice”, at the same time as the ALRB refuses to hear the appeal de novo as it should have, but insists on reviewing only the Record is unconscionable. The proper remedy for this supposed failing at the ALRB level would be an adjournment had the government asked for one which they did not.

[34] Counsel for the Applicants similarly made the following argument before me as follows: So Martineau I believe is the case that stands for the proposition that even at the latest date of Supreme Court of Canada, you can stillraise this constitutional issue, even if you didn’t follow the bouncing dot earlier along. In this particular case, the Government concernedis the Government of the Province of Alberta and they have always been aware from the very outset that this was going to be challengedif they pushed it too far in terms of exercising statutory powers that aren’t there.

Occupational Health and Safety is, in fact, just adivision of the Government. It’s the same relationship to the Crown as the Attorney General and Solicitor General. [35] The Minister during the hearing disputed this argument as follows: I pause now to just highlight the distinction between the Minister of Justice and Occupational Health and Safety. They’re bothrepresentatives of the Crown, but they are distinct entities; so the suggestion that the Crown at large received notice is unsupported andincorrect.

We are distinct entities, and the Minister of Justice is entitled and requires notice if its legislation, Alberta’s legislation intendsto be challenged on a constitutional basis. [36] The Minister’s position is correct and I agree with this submission.

The AJPA expressly requires that notice of constitutionalchallenges to legislation be given to the Minister and the suggestion that sufficient notice has been given if some other arm or branch ofthe provincial government was “aware” of a challenge or the possibility of a constitutional challenge is completely untenable. [37] Accordingly, the ALRB’s conclusion that proper notice of a constitutional question was not provided, and the ALRB’sdetermination that it could not consider the constitutional question, were both reasonable and legally correct. B.

Merits [38] While the failure to give notice is sufficient to dismiss the constitutional issues raised by the Applicants, I would have foundthat they were without merit.

Section 96 Constitution Act [39] While the Applicants strenuously argue that the OHS proceeding is a type of extrajudicial prosecution, the only expressreference to s. 96 of the Constitution Act in their brief is this excerpt: Remarkably the ALRB is empowered to exercise all the powers of a [King’s] Bench Justice for the trial of civil actions, a handy way tosidestep s. 96 of the Constitution Act. [40] The reference to “sidestepping” is repeated later in the Applicants’ brief as follows: The distinction is between the nature of the proceedings and the nature of the act that is impugned.

In the case of the Act there is nodifference. All contraventions of the Act are subject to AP and also to prosecution. There is no difference at all. The only “procedural”difference is an officer can decide without asking any Court that the Act has been contravened and assess a penalty. It is the total absenceof any procedure for assessing the AP that is the only procedural distinction.

Therefore, the AP provided for in the Act are void as beingnothing more than an arrangement for completely sidestepping the Courts when “prosecuting” contraventions of the Act. [41] The Minister refers to Reference re Residential Tenancies Act, (SCC), [1981] 1 SCR 714 at pp 734-736 asestablishing a three-part test for determining whether legislation infringes s. 96: (

a) Does the power conferred “broadly conform” to a power or jurisdiction exercised exclusively by a superior, district or county courtat the time of Confederation (on the basis of a historical examination of pre-Confederation jurisdiction)? (

b) If so, is the function one that is properly considered “judicial” in nature? (

c) If so, is the power nonetheless either subsidiary or ancillary to a predominantly administrative function, or necessarily incidental tosuch a function? [42] The Minister submits that these three parts need not be addressed sequentially. Rather, failure to satisfy any one of themestablishes that s. 96 has not been infringed.

The Minister also referred to the helpful statements in Labour Relations Board ofSaskatchewan v John East Iron Works Ltd, [1948] 4 DLR 674 at 680 (JCPC) when determining what is meant be “judicial function” asfollows: [T]he conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown andsubject or between subject and subject, and that it is the duty of the court to decide the issue between those parties, with whom alone itrests to initiate or defend or compromise the proceedings. [43] The Minister argues therefore that the key inquiry that I must consider is the question being addressed by the administrativebody.

The Minister contrasts “judicial function” with “a function that is based on the exercise of discretion to support a regulatoryscheme, based on policy and expediency”, making the assertion that the latter is an administrative function. [44] The Minister takes the position that an OHS officer’s authority to issue an administrative penalty is not judicial, but rather“part of a process that permits the officer to form an opinion regarding compliance with OHSA and to exercise discretion in deciding howto address non-compliance.

Any function that may appear to be judicial in nature is merely ancillary to the administrative function ofaddressing compliance with the legislation.” [45] I agree with the Minister that an OHS officer’s function is primarily administrative in nature. In my view, neither the

investigation nor the issuance of an administrative penalty constitutes a judicial function as articulated in John East Iron Works.Therefore, this constitutional argument is without merit.

Section 11 Charter [46] In the Notice of Constitutional Question latterly filed by the Applicants, they assert that “...the said

Section 68 creates anunconstitutional procedure in that it ... deprives an accused person of the right to a fair trial before imposition of any penalty, contrary to...

Section 11 of the Canadian Charter of Rights and Freedoms.” [47] Throughout their brief and oral argument, the Applicants made repeated references to terms such as “prosecution”,“detention” and “penal”. Some examples of the arguments in their brief are as follows: These Applications involve troubling legal issues. The statutory provisions are so vague and so powerful it is very difficult to fullyarticulate the extent of their violation of long established rights of persons not to be punished by the Crown without due process.

Theserights are fundamental and go back to the Magna Carta and in some ways to the rights accorded to citizens of ancient Rome and Greece. ... It is wrong in law to find an implied power in the Act to compel a person to attend at a specific time and place to be interviewed. Evenpolice officers do not have that power. It is as wrong in law to read into a statute words that are not there as it is to ignore words that arethere. The powers of Officers are as stated in the Act, no more and no less. There are no implied powers to interfere with the liberty of aperson in Canada. ...

One cannot imply into a statute rights to detain, arrest or compel attendance of a person at a particular place and time for a particularpurpose. Such powers are not “necessary or incidental” for the investigative body or statutory delegate to exercise its responsibilities. ... The important rights a person has in Canada not to be required to cooperate in an investigation of an offence and to claim and enforcesolicitor client privilege when interviewed by the authorities were not addressed in Ebsworth. ...

A person subject to official interrogation (for which OHS uses the euphemism “interview”) cannot be reasonably expected to knowand understand his or her rights in the face of, particularly, compelled disclosure. It is incongruous to prevent police officers fromoverriding this Charter right to presence of legal counsel but to allow mere OHS officers to do so. ... Persons subject to these compelled disclosure would be subject to significant risk of prosecution should they decide to refuse todisclose and were then prosecuted for that refusal. ...

One only has to ask the question: suppose the person subject to the request forinformation or an interview simply elects not to show up? If the person must “show up” on demand then he is ipso facto detained. Afortiori then if the person is not only required to show up but can be arrested for failure to show up then that person is subject to aviolation of his charter rights as soon as the demand to show up is made. As previously mentioned even a police officer doesn’t havethose powers. ... VSC was assessed an AP for allegedly contravening s. 54 of the Act.

Interestingly, that s. 54 sets out a mens rea offence of “obstruction”.It is trite law that a Provincial Legislature cannot create a mens rea offence. [48] In his brief, the Minister cites R v Wigglesworth, (SCC), [1987] 2 SCR 541 and Martineau v Canada(Minister of National Revenue), 2004 SCC 81 for the proposition that a matter falls within s. 11 if: (

a) By its very nature, it is a criminal proceeding; or (

b) A conviction in respect of the offence may lead to a true penal consequence. [49] The Minister argues whether a matter is criminal in nature focuses on the process while a consideration of penal consequencesfocuses on the potential impact of the proceeding on the person subjected to that proceeding.

The Minister notes that the Supreme Courtof Canada in Martineau and in Guindon v Canada, 2015 SCC 41 laid out three considerations to assist in determining the nature of aproceeding: the objectives of the legislation, the objectives of the sanction, and the process leading to the imposition of the sanction. [50] With respect to the first criterion, the Minister acknowledges that both criminal and administrative proceedings may involvethe protection of the public.

Nevertheless, the Minister asserts that administrative proceedings are intended primarily to “maintaincompliance or to regulate conduct within a limited sphere of activity.” In support, the Minister refers to the purposes of the OHSA, as setout in s. 2 thereof, which include the prevention of work site injuries, and the protection of workers. The Minister therefore submits thatthe OHSA’s protections are limited to its policy and purpose and that the investigations and administrative penalties provided for areintended to support that purpose. [51] I agree.

Contrary to the position taken by VSC and the VSC Employees, I find that the investigative powers contemplated bythe OHSA clearly are clearly directed towards investigating workplace injuries with the important purpose of preventing future incidents,not to punish or sanction those involved. The Applicants’ insistence on colouring the OHS investigative procedure as involving a processthat is tantamount to a criminal proceeding does not make it so. [52] With respect to the second criterion as it relates to monetary sanctions, the Minister cites Guindon at para 76:

A monetary penalty may or may not be a true penal consequence. It will be so when it is, in purpose or effect, punitive.

Whether this is the case is assessed by looking at considerations such as the magnitude of the fine, to whom it is paid, whether its magnitude is determined by regulatory considerations rather than principles of criminal sentencing, and whether stigma is associated with the penalty... [ 53 ] The Minister argues that even significant monetary penalties may be necessary to ensure regulatory compliance and that courts have been reluctant, simply by their significance, to characterize them as true penal consequences. [ 54 ] By contrast, counsel for VSC and the VSC Employees argues as follows in his written brief: As an aside it is often said that AP are not penal in nature.

That is absurd. Of course they are penal, they are even called penalties. [ 55 ] This argument is not only circular, but in my view is contrary to statements made by the Supreme Court in Guindon , the Supreme Court making it abundantly clear that not all monetary penalties constitute true penal consequences. [ 56 ] I find that the administrative penalties issued in this case are not true penal consequences, but were intended to ensure compliance with the process under the OHSA , thus permitting OHS to investigate this workplace fatality. VI.

Standard of Review [ 57 ] Having determined that the Applicants’ constitutional arguments are without merit, I now turn to judicial review of the ALRB Decision. [ 58 ] The Applicants appear to take the position that the standard of review in this matter is correctness, saying as follows in their brief: This raises the question of what deference if any ought to be afforded to the ALRB when considering their decisions by way of Judicial Review. The authorities suggest that deference is due to statutory bodies because they are appointed for their particular expertise. That is not the case under this Act .

The appellate decision making body has no such expertise Indeed, the officer Lawson has no particular expertise in any process that might lead to forming an opinion that any of the Applicants had contravened the Act or refused to obey an Order of an officer made under the Act . These are legal questions not findings of fact after receiving and weighing evidence. [ 59 ] Counsel for the Applicants also made this argument at the hearing before me: I would challenge the reasonable standard because of the different hierarchy of this particular case.

I am going to make that argument very briefly, that the correctness is the proper standard here because the first time this actually gets a proper hearing on the reasonableness test would be at the ALRB and they don’t do that. They defer to the officer who doesn’t actually conduct any kind of quasi-judicial or reasoned to process under the statute. He’s not required to follow any process at all. So, you can’t apply the reasonableness standard at your level if the ALRB does not and should conduct a hearing de novo .

My argument being because this has never been investigated properly before the administrative penalty is upheld, ALRB is here that should have happened. They should have held a proper hearing with witnesses and so on where cross-examination would happen. And then when it gets to judicial review level at your level, My Lord, then reasonableness would be an appropriate standard. But because they didn’t do that, this case has never been heard. [ 60 ] OHS, the ALRB and the Minister agree that the standard of review is reasonableness.

The ALRB identifies in its brief that s. 72(13) of the OHSA contemplates judicial review rather than an appeal and that reasonableness is the presumptive standard of review under Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 . [ 61 ] Subject to my additional comments below, I agree that reasonableness is the appropriate standard of review in these circumstances.

The Supreme Court of Canada at para 17 of Vavilov held that the presumption of reasonableness will only be rebutted where required by legislative prescription, or by the rule of law, in relation to certain categories of questions. I find neither implicated here.

In response to the Applicants’ argument concerning the expertise of the administrative decision maker, I note that the Supreme Court at para 31 of Vavilov held that this is no longer a factor when determining the appropriate standard of review: We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. [ 62 ] The Applicants further argue that both the OHS investigation and the appeal before the ALRB were procedurally unfair.

Notwithstanding the Vavilov presumption, the standard of review for questions of procedural unfairness is somewhat different.

As, the Alberta Court of Appeal stated in R v Ferzli , 2020 ABCA 272 at para 21 : The standard of review for questions of procedural fairness is whether the standard of fairness required by the common law has been met, although some cases continue to characterize this as the application of the correctness standard of review: Mission Institution v Khela , 2014 SCC 24 qat para 79 ; Hennig v Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) , 2008 ABCA 241 at para 12 . VII. Analysis

[ 63 ] The Applicants challenge not only the ALRB Decision, but the process preceding that decision. A. Procedural Fairness [ 64 ] In their brief, the Applicants argue that procedural fairness was adversely implicated by present circumstances. At the essence of this argument, the Applicants submit that not only did OHS’ investigation involve an unfair process, but that the ALRB acted unfairly by hearing the appeal on the record rather than de novo . 1.

Due Process [ 65 ] With respect to the investigative process employed by OHS, the Applicants argue as follows: There is in fact no Record pertaining to Lawson’s assessment of the AP. There was no proceeding conducted by Lawson. An “investigation” by Lawson is not a proceeding for which a Record could result. The result of the process followed by Lawson and the ALRB is that the true merits of the assessment of the AP has not at any time been inquired into. Lawson conducted an investigation, formed an opinion and assessed the AP.

The ALRB looked at what Lawson did and decided it was okay with no standard against which to apply or compare Lawson’s decision making process and come to any reasoned decision about whether it was lawful or not. Not only did the ALRB refuse to conduct a hearing de novo , Lawson conducted no hearing at all. The absence of any procedure in the Act for Lawson to form the opinion empowering Lawson to assess the AP is fatal to the enforceability of the AP sections. There is literally no legislation to enforce. ...

Lawson finds that Ponich was entitled to issue an Order under s. 59 of the Act which requires that such a s. 59 Order be issued pursuant to an opinion of that Ponich “through an investigation under s. 51 or an investigation under s. 53”. It is pure sophistry to interpose Lawson into this process. Presumably this was done to create a simulacrum of some form of unbiased process. The Act makes no such provisions. They are pure inventions of OHS. None of the purported Orders relied upon s. 51. Each Order relied only upon s. 53(2). ...

The Act does not provide any details about what the officer must do in order to lawfully form the required opinion under s. 59 before issuing the order. There is also no process for an officer to form the opinion required under s. 68. The result of these omissions from the Act is said to empower the officers to make up their own processes. By doing so officers can create offences where there are none. ... There is no procedure in the Act setting out how an AP is to be assessed. OHS has invented a procedure which is riddled with errors.

The first point to realize is that OHS has not been given any power to create or follow a procedure for assessing AP. Therefore, absent such procedure no AP can be lawfully assessed by anyone. [ 66 ] OHS does not agree and submits that its officers conducted procedurally fair investigations and in support of this argument refers to Officer Lawson’s actions between April and July 2020. OHS notes that the Applicants were invited to participate in the investigative process but refused to do so.

OHS’ position is that each of the Applicants was made aware of the case against them and given ample opportunity to provide written submissions in response. [ 67 ] OHS suggests that the facts as identified in Rebel News Network Ltd v Alberta (Election Commissioner) , 2021 ABCA 376 are substantial similar as the appellant was invited to respond to a potential decision to issue an administrative penalty but refused to do so.

The Court of Appeal held at para 12 that the notice issued “was not intended to communicate a final decision on contravention, but rather was in compliance with the statutory requirement to provide notice of the substance of the allegations against Rebel and to invite Rebel’s response”. [ 68 ] I agree that the a similar principle applies here. I am satisfied that Officer Lawson’s above-described efforts were sufficient to make the Applicants aware of what OHS sought, and of the potential for an administrative penalty to be levied if they failed to comply.

Accordingly, I find that the Applicants were afforded procedural fairness. 2. Hearing on the Record [ 69 ] The Applicants also argue that they were denied procedural fairness because the ALRB heard their appeal on the record rather than conducting a de novo hearing.

As the Applicants argue in their brief: The Act appears to require the ALRB to consider the assessment of an AP afresh or the granting of such extensive powers in s. 71 would be redundant as never exercised. [ 70 ] At the hearing, counsel for the Applicants further argued as follows: But here, the first time a person who has been penalized gets a hearing under the statute, the first time is before the Alberta Labour Relations Board who in essence refuses to hold the hearing as a matter of policy. They have the policy that they will only make their decision on the basis of the record before the officer.

Well, there is no record before the officer because the Act doesn’t provide for that scenario. The officer just has to form the opinion. We don’t know from the statute whether that opinion has any implied obligation that the opinion be reasonable, that the opinion be beyond a reasonable doubt and so on. He just has to form the opinion. Interestingly, the officer who issued the order must form an opinion.

... the ALRB takes the position that they are a review body sitting as an appellate body that does not hear the situation de novo . The net result is that the situation is never heard. There is no hearing of any kind during which the officer is expected to form an opinion. And that would mean – I mean the policy of the ALRB that they don’t hear de novo means that their powers under subsection (10), is it – yes, of their procedure

section 72 is just nugatory. They don’t take advantage of the powers that are given to them. And it’s – it’s clear that they ought to. The first and essentially only time that the issue of whether the officer’s opinion was at all justified or not is ever determined by any kind of fair and reasonable process would be if the ALRB were to conduct a hearing de novo which is what used to happen under the council’s provision when the council was the appellate body with respect to orders, for example. They used to regard it as the first time anybody really looked into it if I may use that colloquialism. ...

In the case of administrative penalty, it goes straight from you are guilty, here’s the administrative penalty, you have done this, goes straight to an appeal board who refuses to go into the circumstances and simply reads the record. And in this particular case as it turns out, the record is so thin on the ground, no reasonable person could find justification for the opinion that Mr. Lawson came to. There’s just no substance to the Occupational Health and Safety’s case if you just look at the record. [ 71 ] The OHS in response refers to its submissions as made to the ALRB and dated November 23, 2020.

The relevant portion reads as follows: Counsel for the Appellants has requested an in-person trial for each appeal. With respect, no laudable purpose would be served by conducting in-person de novo hearings for each appeal. As noted above, the OHS Act does not contemplate the Board becoming a tribunal of first instance. Counsel for the Appellants referred to section 72(10) of the OHS Act, which grants the Board the authority to summon and hear from witnesses. However, as the Court held in Newton at paragraph 47: “These provisions appear in many statutes and are merely enabling.

They apply to inquiries as well as appeals and allow the Board to hold an effective hearing when required. They do not signal an intention to mandate a de novo hearing in every appeal.” ... All of the information that was before the officer when he issued the administrative penalties has been submitted to the Board in the Records filed in each appeal. Counsel for the Appellants has not made an application to adduce new evidence, he has not specified what new evidence each Appellant intends to present, and he has not identified any special circumstances warranting the production of new evidence.

In these circumstances, it would be inefficient and a waste of public resources to run successive de novo hearings for each appeal, as the Court held in Newton at paragraph 80. [ 72 ] In my view, there was no unfairness occasioned by the ALRB’s decision to conduct the hearing on the record. There is nothing in the OHSA that mandates a de novo hearing, and I agree with the OHS that the ALRB is not a tribunal of first instance. Moreover, it is clear to me that the Applicants were aware of the case to be met and for that reason a de novo hearing with witness testimony would serve little purpose.

Fundamentally, OHS sought to interview the VSC Employees, who refused to attend or subject themselves to such interviews, at least not without the personal presence of their legal counsel. It is this refusal that led to the administrative penalties. I am satisfied that the Applicants were able to make their case effectively to the ALRB at a hearing conducted on the record. B. The ALRB’s Decision [ 73 ] Having determined that there was procedural fairness, I will now consider the merits of the ALRB’s Decision. The Applicants take issue with the ALRB Decision for several reasons.

As I earlier stated, the merits of the ALRB Decision must be assessed on the reasonableness standard. 1. The Ebsworth Decision [ 74 ] First, as the OHS notes in its brief, the Applicants seem to argue that OHS and the ALRB erred in relying on Ebsworth v Alberta (Human Resources and Employment) , 2005 ABQB 976 as authority for OHS to compel interviews without legal counsel present. [ 75 ] In the ALRB Decision at para 54, the ALRB stated: VSC ground of appeal 3 and VSC Employees ground of appeal 4 assert that the Act did not authorize the OHS Officers to pursue the investigation.

Relevant sections of the Act are 51(1)(

j) and 53(2) which sections were also referenced in the Ebsworth decision. Officer Lawson in issuing the NAAPs relied upon the

interpretation set out in Ebsworth for his authority to carry out the interviews without legal counsel. The Board concludes that the analysis of Officer Lawson on this point was coherent, rational and justified. As such, VSC ground for appeal 3 and VSC Employees ground for appeal 4 are dismissed. [ 76 ] In their brief, the Applicants appear to take the position both that Ebsworth was wrongly decided and that it did not decide the necessary issues.

They argue as follows: The wrong question was asked in Ebsworth ... and, unsurprisingly, Ebsworth failed to deal with the actual issue which is the silence of the Act as to what powers officers do have to compel attendance for an interview or to compel a person to attend to respond to a request for information. Ebsworth assumed such a power existed or could be implied without consideration of the absence of any such statutory powers. Ebsworth should not be followed to the extent it appears to rule otherwise. Ebsworth also seems to support an argument that is untenable.

One cannot imply into a statute rights to detain, arrest or compel attendance of a person at a particular place and time for a particular purpose. Such powers are not “necessary or incidental” for the investigative body or statutory delegate to exercise its responsibilities. Indeed, were such powers to be necessary their absence as express powers is illogical. An officer is not an “investigative

body” nor is an officer a “statutory delegate”. ... [ Ebsworth ] is not a ruling that the Act authorizes an officer to require a person interviewed to be unaccompanied. The Act is silent on the authority of an officer to exclude anyone from any interview conducted un the Act (s. 51). ... In Ebsworth at paragraph 36 the Court determines that the silence of the Act should give rise to an implied inclusion of powers to the officer rather than the opposite. With respect, that does not make sense. ...

The important rights a person has in Canada not to be required to cooperate in an investigation of an offence and to claim and enforce solicitor client privilege when interviewed by the authorities were not addressed in Ebsworth . ... The reasoning in Ebsworth paragraph 42 that a person being “interviewed” is not detained is untenable. One only has to ask the question: suppose the person subject to the request for information or an interview simply elects not to show up? If the person must “show up” on demand then he is ipso facto detained.

A fortiori then if the person is not only required to show up but can be arrested for failure to show up then that person is subject to a violation of his charter rights as soon as the demand to show up is made. As previously mentioned even a police officer doesn’t have those powers. [ 77 ] Similarly, during oral argument, the Applicants further argued: [OHS] do not have the right to conduct an interview excluding any other person. ...the person who is about to be interviewed has the right if they are detained by a person in authority to consult a lawyer.

Whether that lawyer is entitled to remain or not is not an issue before this Board on the facts that are before this Court. But the issue of whether someone is detained when required to attend either virtually or otherwise by an [OHS] order either pursuant to a letter or an order is definitely raised. In Ebsworth in my respectful submission, the learned justice does not come to a supportable – reasonably supportable conclusion that the person is not detained. ...

And that’s the distinction that I don’t think was properly made in Ebsworth and I make that distinction here, that a person who is ordered to attend an interview by an [OHS] officer or even requested on pain of being forced to attend is from the moment that that demand is made with the intent to enforce the demand is essentially under arrest.

There’s just no other way to describe it. [ 78 ] OHS asserts that its reliance on Ebsworth as authority to conduct interviews without counsel present was, as the ALRB put it, “coherent, rational and justified” and that the ALRB’s conclusion that this was the case was reasonable. [ 79 ] It is important to bear in mind that my role on this application is to review the ALRB Decision to ensure that it is reasonable. My task here is not to assess the merits of this Court’s decision in Ebsworth . [ 80 ] It is clear from the ALRB Decision that the ALRB considered Ebsworth in detail.

At para 50, the ALRB cited the Court’s findings with respect to the OHS’ process and jurisdiction: At paragraph 69 Justice Verville in Ebsworth concluded: 1. Although it may be desirable and perhaps even advantageous to permit the presence of legal counsel during an interview conducted pursuant to s. 19 of the OHS Act , the WHS [now OHS] has the jurisdiction to govern its procedure and to exclude the presence of legal counsel. 2. The policy of prohibiting witnesses from having legal counsel present during an investigative interview pursuant to

section 19 of the OHS Act is not contrary to the Charter . [ 81 ] I am satisfied that the ALRB’s conclusion that OHS’ reliance on Ebsworth was “coherent, rational and justified”, and therefore, it was reasonable. [ 82 ] I would add, however, that even if I were to subject the ALRB’s conclusions to a correctness standard, the ALRB’s decision does not contain any misstatements or inaccuracies in relation to any legal principles as informed by Ebsworth, 2022 SCC 19 , a decision which necessarily binds and informs the ALRB decision based upon the principles of vertical stare decisis : R v Sullivan , 2022 SCC 19. [ 83 ] It is important to note that the arguments made on appeal by the Applicants before the ALRB did not, beyond the constitutional issues I have considered, allege that a provision of the OHSA , as an enabling statute, violated the Charter .

The Applicants argue instead that the effect of the administrative decision unjustifiably limit rights under the Charter .

The Applicants arguments, as I have said, are therefore not subject to a correctness standard: Vavilov , at para 57 . [ 84 ] The standard of reasonableness, in turn, when assessed in the context of Charter compliance and fairness is informed by the reasoning in Doré c Québec (Tibunal des professions), 2012 at paras 57-58, which states: [W]hen a court is faced with reviewing an administrative decision that implicates Charter rights, the issue becomes one of proportionality... and calls for integrating the spirit of s. 1 into judicial review.

Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.

If in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objective, the decision will be found reasonable (citations removed). [ 85 ] The reasoning in Doré was considered in Loyola High School Attorney General, 2015 SCC 12 . At paras 37 and 39, where the

Supreme Court states as follows: On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable becauseit reflects a proportionate balance between Charter protections at stake and the relevant statutory mandate... Reasonableness review is acontextual inquiry... In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamentalvalues protected by the Charter....

A proportionate balancing is one that gives effect, as fully as possible to the Charter protections atstake given the particular statutory mandate.

Such a balancing will be found to be reasonable on judicial review (citations removed). [86] The biggest hurdle for the Applicants is that they have failed to demonstrate that any Charter protected rights possessed bythem have been implicated or violated in the present circumstances, and I agree that the ALRB reasonably, and correctly, interpreted andapplied the Charter when considering the appeal brought forward by the Applicants under s. 72(13) of the OHSA. [87] Mindful of the principles of comity and horizontal stare decisis, I agree with the conclusions reached by this Court inEbsworth.

The issues considered by Verville J in Ebsworth are almost identical to those considered by the ALRB when deciding thepresent appeal. I agree with the ALRB that the underlying investigation as conducted by OHS investigators did not operate to violate anyof the Applicant’s Charter protected rights. [88] I would note that even in the context of a regulatory prosecution, the admissibility of statutorily compelled statements, asinformed by Charter, is to be determined on a case-by-case basis because the analysis is largely contextual.

As Fenion JA stated in R vMossman, 2020 BCCA 299 at para 11-23, context is always important when considering whether the s.7 Charter right to be free fromself-incrimination is implicated when considering a statement obtained under statutory compulsion.

As Justice Fenion wrote, there areseveral decisions of the Supreme Court of Canada that have considered statement admissibility in the circumstances of statutorycompulsion, such as: R v Jarvis, 2002 SCC 73; R v Nolet, 2010 SCC 24; R v White, [1999] SCR 417; R v Fitzpatrick, (SCC), [1995] 4 SCR 154. [89] Importantly, none of these decisions or any of the subsequent jurisprudence, detracts from the conclusions found in para 54 ofEbsworth.

In particular, the Court’s finding that the statutory compulsion to provide a statement about a work site incident, does notthereby create an adversarial relationship as between the Applicants and the state. As Justice Verville correctly noted, the Applicantswere in no sense accused, arrested, or charged. There, as here, the Applicants were not put into an immediate situation of legal jeopardyby reason of being required to provide a statement.

This is because of the immunity provided by s.53(7) of the OHSA, which prohibitsthe use of a statement given to an OHS investigator for any purpose in a trial except to prove non-compliance. [90] As I have said, context is important, and the specific context under review involves an investigation into a work site fatalitywhere prospective interviewees, the VSC employees, refused to provide statements when an officer of OHS initially attended upon theVSC office to conduct interviews. Legal counsel, identifying himself as counsel for VSC, refused to permit the employees to beinterviewed in his absence.

When the investigating officer asked Mr. Neustaedter if he was willing to participate in an interview withoutcounsel present, he refused. When the OHS investigator asked Mr. O’Neill if he would provide a statement without legal counsel present,he was directed not to answer.

Subsequent efforts to have VSC employees interviewed, virtually, or at the OHS office, were similarlyrefused by the VSC employees; legal counsel disputing the authority to compel attendance of the VSC employees at the OHS office forthe purpose of an interview, and in the absence of legal counsel. [91] As the ALRB decided on appeal, both reasonably and correctly based Ebsworth, s. 51(1)(

j) of the OHSA does not restrict anofficer from interviewing simply those who have witnessed a work site incident or injury. An officer may interview any person, at thework site or at another location, who has information about the health and safety of workers at the work site. In addition, as this Courtdecided in Ebsworth at paras 34-37, the authority to determine how investigators may receive information is implicit in carrying out theinvestigative function. It was open to OHS investigators to seek an interview of the VSC as requested, virtually, or in person at the OHSoffice.

I would add the simple observation, in these circumstances, that it is evident that the VSC employees objected to beinginterviewed anywhere, including, at the workplace or OHS’ offices. This is because the VSC employees wrongly were of the view thatthey would only submit to an interview with legal counsel being personally present. [92] As is self evident, I am of the view that Ebworth correctly decided that there is no legal obligation under the Charter, orotherwise, for OHS investigators to permit legal counsel to be present during an interview for the purpose of obtaining a statement asauthorized by the OHSA.

In my view, it would be odd for me to come to any other conclusion. I say this because, even in the criminalcontext where police investigators are actively seeking to obtain incriminating evidence, as for example in a murder investigation, thepolice generally do not have the obligation to permit legal counsel to be present during an interview or interrogation of someone who isunder investigation as a suspect or accused: R v Sinclair, 2011 SCC 40. 2. Questions of Fact [93] The ALRB set out this issue in the ALRB Decision at para 55: VSC ground for appeal 2 asserts there was no hindrance or interference by VSC.

Section 54 of the Act prohibits a party from hindering orinterfering with an investigation. VSC Employees ground for appeal 3 and 6 assert that there was no information to be had and or noproper demand for information. Section 53(1)(

j) of the Act requires a party to provide information. [94] On this judicial review, the Applicants continue to take the position that there has been no interference and no withholding ofinformation. They argue as follows in their brief: ...the facts are clear that none of the applicants ever refused to supply any information requested. No requests were ever made. ... VSC was assessed an AP for allegedly contravening s. 54 of the Act. ... Lawson “found” that VSC had interfered with the interview

process by retaining the same legal counsel as the employees had retained. There was no other evidence of interference apart from the mere fact of the common retainer. ... Further, the sole finding of Lawson when assessing the AP against VSC appears to equate hiring the same lawyer for two or more people with actively obstructing the officer. That is not rational. There is no evidence whatsoever that VSC did anything to obstruct the interview process. ... In fact, VSC facilitated the first pair of requested interviews at its offices. Space was made available.

Ponich declined to request any information from either O’Neill or Neustaedter much less any such information that met the statutory description of being “about the injury or incident” ostensibly because of the presence of legal counsel with the interviewee. Lawson equated that representation as somehow implementing interference by VSC for which there is absolutely no evidence. [ 95 ] At the hearing, counsel for the Applicants argued as follows: Technically, neither of [Mr. O’Neill or Mr. Neustaedter] refused to provide any information requested because no information was requested. ...

Well, there’s no evidence whatsoever that Volker Stevin Contracting did anything that could fall into that category. The argument is that they hired the lawyer and that the lawyer did something wrong and that the acts of the lawyer are the acts of Volker Stevin when, in fact, it was quite clear on the record that the lawyer acted for the individual employees as well as the employer.

The mere fact that the lawyer has been retained by these people cannot be a hindrance to the officer exercising his duties. ...there’s no evidence to support that the employer in any way interfered with or hindered an office in the exercising of powers or performing duties under the Act. The record does show elements of compliance – in other words, that Volker Stevin did, in fact, assist the officers on several occasions.

But there was no evidence other than the retainer of the common lawyer to support a finding that the employer hindered. [ 96 ] In the ALRB Decision, the ALRB found that the grounds for appeal set out above are questions of fact that are entitled to deference on review.

The ALRB noted at para 56 that OHS had provided an outline of the information contained in the record that supported Officer Lawson’s findings of fact and referred to OHS’ submission that: The Officer also considered the [sic] VSC had refused to provide personal contact information for the VSC Employees to OHS and that the VSC Employees had been instructed not to provide such information to OHS.

The Officer reasonably found that counsel for VSC and the VSC Employees was acting on their collective agreement instructions to repeatedly decline the VSC Employee’s participation in OHS interviews without legal counsel being present. [ 97 ] The ALRB then concluded as follows at para 57: Based on the information from the Record as referenced in the OHS submission, Officer Lawson made reasonable findings of fact that VSC interfered or hindered with the OHS Officers in their investigation, the VSC Employees would have had information in relation to the October 2, 2019 incident, the process followed by Officer Lawson to request the information was proper and the VSC Employees had refused to provide any information.

These findings are amply supported by the material in the Record, and the Appellants have not provided the Board with a compelling basis to disturb them. As such, VSC grounds for appeal 2 and VSC Employees grounds for appeal 3 and 6 are dismissed. [ 98 ] In my view, the ALRB’s conclusion was reasonable. Contrary to the argument made by counsel for the Applicants, it is clear on the evidence that Officer Lawson did not base his finding that there had been a contravention of the OHSA on the mere fact that VSC and the VSC Employees had retained the same lawyer.

The ALRB reasonably concluded that Officer Lawson’s finding that there had been a contravention was based on the VSC Employees’ refusal to provide information and on VSC’s refusal to provide contact information for the VSC Employees. 3. Breach of the Act [ 99 ] What might be considered as the primary issue concerns the question of whether VSC and the VSC Employees breached the OHSA , thus justifying the administrative penalties. OHS took the position before the ALRB that Officer Lawson’s decision that the administrative penalties were warranted was reasonable.

The ALRB Decision confirmed the administrative penalties. [ 100 ] In its brief, OHS asserts that the ALRB conducted a thorough review of the records before it and, in the ALRB Decision, set out a detailed narrative of the proceedings, including the objections of both VSC and the VSC Employees. [ 101 ] At paras 62 and 63 of the ALRB Decision, the ALRB concluded as follows: Section 53(2) requires a person to provide OHS with information relating to an injury or an incident. Officer Lawson in each of the NAAPs provided a historical background similar to the historical provided in this decision.

In his analysis portion of the NAAPs, Officer Lawson referenced the Ebsworth decision and proceeded to conclude that the VSC Employees had refused to provide information in relation to the October 2, 2019 incident and had been non-compliant with the

section 59 Order. The Board concludes tat the NAAP’s analysis and findings regarding the violations of

section 53 and

section 59 are justified, rational and coherent and withstand scrutiny on a reasonableness standard. Accordingly, the Board dismisses VSC Employees grounds for appeal 2. [ 102 ] In their brief, the Applicants take issue with both Officer Lawson’s authority and the process he followed:

The ALRB looked at what Lawson did and decided it was okay with no standard against which to apply or compare Lawson’s decision making process and come to any reasoned decision about whether it was lawful or not. Not only did the ALRB refuse to conduct a hearing de novo , Lawson conducted no hearing at all. ... Clearly VSC has been penalized for interfering with an officer who was not in fact carrying out any statutory duty. [ 103 ] Similarly, in oral submissions, counsel for the Applicants stated: Now, the – an officer under the [ OHSA ] has no such powers.

If someone ignores the order, they cannot enforce it; and that’s where we get to this administrative penalty. This administrative penalty was awarded – or imposed because in this case Mr. Neustaedter apparently ignored the order.

If the order was beyond the power of the officer to make, then he was justified in doing so and could not be issued an administrative penalty for exercising his right as a citizen to ignore someone who tried to force him to do something who had no legal authority to do so. [ 104 ] As I have reviewed, the ALRB found that Officer Lawson’s conclusion that there had been a contravention of the OHSA in the form of a refusal to provide information was reasonable. The ALRB reviewed the matter in considerable detail when reaching this conclusion.

I find that the ALRB Decision was reasonable. [ 105 ] The Applicants’ position that OHS has no authority to compel a person to provide information would render the OHSA essentially toothless. If a request for information regarding a workplace incident can be ignored with impunity, OHS’ mandate to protect worker safety would be rendered nugatory. This cannot have been the Legislature’s intention. As OHS identifies in its brief, the OHSA provides for what it terms “use immunity” in sections 51(6) and 53(7) . 4.

Appropriateness of Penalties [ 106 ] The Applicants’ final ground of appeal before the ALRB suggested that the administrative penalties were inappropriate. This is canvassed at paras 65 and 66 of the ALRB Decision: In relation to the VSC Employees, the VSC Employee argument is that each of the employees received the same penalty ($1,000) and is irrational that each employee should receive the same penalty when the context for each employee is different. The focus of the NAAPs was the refusal of the VSC Employees to participate in an interview without counsel present.

This is a common issue for all four VSC Employees: the information contained in the Record does not suggest that the refusal to participate occurred along a continuum or by degree. Officer Lawson in assessing the penalty addressed the guidelines and explained the exercise of his discretion. The Board concludes that he appropriately turned his mind to the applicable factors and applied them in a reasonable and rational manner. VSC Employees ground for appeal 7 is dismissed.

For VSC ground for appeal 6, which also challenges the appropriateness of the penalty, counsel for VSC argued that there was common counsel for both VSC and the VSC Employees and as such Officer Lawson could not identify as to whether it was VSC or the VSC Employees on their own who did not want to participate in the interviews. The Record indicates that on February 11, 2020 VSC Employee Neustaedter was asked if he would agree to an interview without counsel and Mr. Neustaedter advised he would not do an interview without VSC’s counsel and that VSC’s counsel subsequently continued to remain in the room.

It is relevant to note that Mr. Neustaedter did not state he would not do an interview without his counsel. Further VSC refused to provide contact information for the VSC Employees to OHS. From this, it was reasonable for Officer Lawson to infer that it was VSC that was refusing to allow the VSC Employees to participate in the interviews. Based on its review of the Record, the Board concludes that Officer Lawson was reasonable in his conclusion that VSC pursuant to

section 54 of the Act interfered or hindered with the investigation and, upon review, does not see any flaws in his determination that the $5,000 penalty was appropriate. VSC ground for appeal 6 is dismissed. [Emphasis in ALRB Decision.] [ 107 ] The Applicants did not expressly raise this ground of appeal in argument before me, though they did argue somewhat facetiously write in their brief that “Failure to wear a hard hat engages the same range of AP as does causing a fatality.” It is worth remembering that this case did in fact involve a fatality.

A VSC employee lost his life and OHS rightly sought to investigate and obtain statements. That investigation should not be unreasonably thwarted. [ 108 ] I find that the ALRB’s conclusion in the ALRB Decision that the administrative penalties were appropriate was reasonable. VIII. Conclusion [ 109 ] Taking all the foregoing into account, I find that the ALRB Decision confirming the administrative penalties was reasonable. [ 110 ] Neither the Minister nor the Applicants made any reference to costs.

The ALRB specifically stated that it was not seeking costs, while OHS requested an opportunity to make further submissions regarding costs following my decision on the judicial review application. The parties should make every attempt to agree upon costs. If the parties do not agree upon costs, they may make further submissions in writing not to exceed 5 pages each in total. Heard on the 15 th day of February, 2023. Dated at the City of Calgary, Alberta this 16 th day of May, 2023.

D.A. Labrenz J.C.K.B.A. Appearances: C. Michael Smith for the Applicants Terri Susan Zurbrigg for the Alberta Labour Relations Board Natalie Tymchuk for Occupational Health and Safety Matthew Parent, Brooklyn LeClair for the Intervenor _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice D.A.

Labrenz _______________________________________________________ Para 82, line 1: if I were to subject Para 90, line 6: colon removed and comma inserted: counsel present, he refused Para 90, line 8: Subsequent efforts to have the VSC employees interviewed either virtually, or at the OHS office, were similarly refused Para 91, line 2: s.51(1) (

j) of the OHSA Para 91, line 7: instead of “and” virtually, or in person at the OHS office

Para 91, line 9: VSC employees objected to being interviewed anywhere Para 92, line 1: self evident and not self evidence