Barbara Wieler Appellant (Applicant) v. Saskatoon Convalescent Home, 2017 SKCA 90

Court of Appeal for Saskatchewan Docket: CACV2636 Citation: Wieler v Saskatoon Convalescent Home, 2017 SKCA 90Date: 2017-10-20Between:Barbara WielerAppellant (Applicant)AndSaskatoon Convalescent HomeRespondent (Respondent)Before: Jackson J.A., Ryan-Froslie J.A. and Wilkinson J. (ad hoc)Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice JacksonIn concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Madam Justice WilkinsonOn Appeal From: LRB File No 115-14, ReginaAppeal Heard: October 17, 2016Counsel: Elke Churchman and Kim Chatfield for the Appellant Leah Schatz, Q.C., and Markel Chernenkoff for the Respondent Jackson J.A.

I. Introduction [1] The Saskatoon Convalescent Home [Home] terminated Barbara Wieler’s employment and entered into an arrangement withher, which involved the payment of severance in exchange for a general release of claims arising from the termination. Ms. Wielerreceived independent legal advice on the arrangement and executed the release. A month later, she filed a complaint alleging that thetermination of her employment constituted discrimination under the former The Occupational Health and Safety Act, 1993, SS 1993,c O-1.1 [OHS Act] (which has since been repealed and replaced by

Part III of The Saskatchewan Employment Act, SS 2014, c S-15.1). [2] By reason of the release, the occupational health and safety officer [OHS Officer], who received Ms. Wieler’s complaint,concluded it was outside his jurisdiction. Ms. Wieler then exercised a first right of appeal, which was heard by a special adjudicatorappointed under the OHS Act. The special adjudicator heard evidence. She found the OHS Officer did not lack jurisdiction, but thecomplaint was barred by the existence of the release. On a second appeal to the Saskatchewan Labour Relations Board [Board],Ms. Wieler’s appeal was again dismissed.

The Board found the special adjudicator had correctly determined that the release preventedMs. Wieler from seeking additional relief under the OHS Act. The Board’s decision is reported as Barbara Wieler v SaskatoonConvalescent Home (7 November 2014), SKLRB File No 115-14 (Love), [Board Decision]. [3] The essential issue on this appeal is whether a complainant under the OHS Act could release an employer with respect to awrongdoing that had occurred in the past and that is personal to the complainant – as opposed to being systemic in nature.

It is this issuethat determines whether the Board erred in law by holding that the special adjudicator did not err when she dismissed Ms. Wieler’sappeal. [4] I have concluded that the Board did not err when it held that a complainant under the repealed OHS Act could release anemployer with respect to any past wrongdoing that is personal to the complainant. Thus, the Board did not err when it dismissedMs. Wieler’s complaint. II. Background [5] Ms. Wieler began employment with the Home as a registered nurse on a casual basis in June of 2008.

On August 27, 2012,she began to work full-time on a probationary basis as the Assistant Director of Care at the Home. Her probationary period was to lastsix months. [6] On January 29, 2013, the Home terminated Ms. Wieler on the basis that she was “not suitable” for the position. Ms. Wielerwas asked to sign a release in exchange for one month’s severance pay. [7] Ms. Wieler consulted counsel, who advised her she had no claim against the Home. She eventually executed the release onFebruary 24, 2013.

The pertinent part of the release reads as follows: I, Barbara Wieler, of the City of Saskatoon in the Province of Saskatchewan, in consideration of the payment of the equivalent of one (1)months salary and other valuable consideration, receipt of which is hereby acknowledged, on behalf of myself, my heirs, administratorsand assigns, hereby remise, release and forever discharge Saskatoon Convalescent Home, its predecessors and affiliates including theirofficers, direct[or]s, employees, servants, agents, successor and assigns (collectively the “Releasees”) jointly and severally from any andall actions, causes of actions, claims and demands of every nature or kind arising out of, or in any way related to, or connected with my

employment or termination thereof with the Releasees including, but not limited to, any claims for notice of termination, pay in lieu of such notice, bonuses, overtime pay, benefits or benefit coverage or any other compensation or benefit whatsoever .

For the consideration aforesaid, I hereby covenant and agree not to make any claim or to commence or maintain any action or proceeding against the Releasees arising out of my employment or termination thereof or against any person or corporation in which any claim could arise against the Releasees for contribution or indemnity in respect of any incident during the period of my employment with the Releasees including the termination of my employment. (Emphasis added) [ 8 ] On March 12, 2013, Ms.

Wieler filed a complaint with the Occupational Health and Safety Division of the Saskatchewan Ministry of Labour, alleging that she had been the subject of discriminatory actions, contrary to s. 27 of the OHS Act . Ms.

Wieler specifically alleged that, prior to her termination, she had raised occupational health and safety concerns regarding first, “long-standing bullying and intimidation by the management team” and second, the “risk for staff injury due to unsafe staffing levels in the nursing department”. [ 9 ] The pertinent aspects of s. 27 of the OHS Act are as follows: Discriminatory action prohibited in certain circumstances 27 No employer shall take discriminatory action against a worker because the worker: (

a) acts or has acted in compliance with: (

i) this Act or the regulations; … (ii) a code of practice; or … (

b) seeks or has sought the enforcement of: (

i) this Act or the regulations; or … (

c) assists or has assisted with the activities of an occupational health committee or occupational health and safety representative; (

d) seeks or has sought the establishment of an occupational health committee or the designation of an occupational health and safety representative; (

e) performs or has performed the function of an occupational health committee member or occupational health and safety representative; … (

h) gives or has given information to an occupational health committee, an occupational health and safety representative, an occupational health officer or other person responsible for the administration of this Act or the regulations with respect to the health and safety of workers at a place of employment … . [ 10 ] On March 21, 2013, Ms. Wieler was told by an occupational health and safety officer, Andrea Dunkle, that the release she had signed would not affect her ability to bring a complaint of discriminatory action under s. 28 of the OHS Act .

Section 28 provides as follows: Referral to officer 28

(1) A worker who, on reasonable grounds, believes that the employer has taken discriminatory action against him or her for a reason mentioned in

section 27, may refer the matter to an occupational health officer.

(2) Where an occupational health officer decides that an employer has taken discriminatory action against a worker for a reason mentioned in

section 27, the occupational health officer shall issue a notice of contravention requiring the employer to: (

a) cease the discriminatory action; (

b) reinstate the worker to his or her former employment on the same terms and conditions under which the worker was formerly employed; (

c) pay to the worker any wages that the worker would have earned if the worker had not been wrongfully discriminated against; and (

d) remove any reprimand or other reference to the matter from any employment records maintained by the employer with respect to that worker.

(3) Where an occupational health officer decides that no discriminatory action has been taken against a worker for any of the reasons set out in

section 27, the occupational health officer shall advise the worker of the reasons for that decision in writing.

(4) Where discriminatory action has been taken against a worker who has acted or participated in an activity described in

section 27,

there is, in any prosecution or other proceeding taken pursuant to this Act, a presumption in favour of the worker that the discriminatory action was taken against the worker because the worker acted or participated in an activity described in

section 27, and the onus is on the employer to establish that the discriminatory action was taken against the worker for good and sufficient other reason. III. Decision of the OHS Officer [ 11 ] Ms. Wieler’s complaint was ultimately heard by a different occupational health and safety officer. On May 29, 2013, he concluded he was unable to investigate Ms. Wieler’s complaint in light of the release she had signed on February 24, 2013. He was of the view that the release placed her complaint “outside of the jurisdiction” of the OHS Act . In correspondence, he wrote the following: Dear Ms.

Wieler: I have been assigned to deal with your file. As you know, your file was previously dealt with by Occupational Health Officer, Andrea Dunkle. I have reviewed the contents of your file, including the Discriminatory Action questionnaire regarding your employment termination. Normally, where an employee has been fired from their place of employment, after raising health and safety concerns, Occupational Health and Safety (OHS) can investigate the situation. During my review of your file I noted that you signed an agreement with the Saskatoon Convalescent Home, your previous employer.

As you know in this agreement, signed on February 24, 2013, you have agreed not make any claim or commence any action or proceeding against your previous employer. Based on the above information it is my decision that your situation is outside of the jurisdiction of OHS . You have the option of seeking legal counsel. (Emphasis added) [ 12 ] On May 31, 2013, Ms.

Wieler appealed the OHS Officer’s decision to a special adjudicator pursuant to s. 56.3(1) of the OHS Act : Appeals to special adjudicator – re harassment 56.3(1) A person who is directly affected by a decision of an occupational health officer respecting any matter involving harassment may appeal the decision to a special adjudicator. IV. Decision of the Special Adjudicator [ 13 ] Ms. Wieler alleged the OHS Officer had erred by (

a) ignoring serious health and safety concerns taking place at the Home; (

b) choosing not to proceed with harassment and discriminatory action claims against the Home; (

c) giving effect to the release Ms. Wieler had signed when Ms. Wieler was not aware of the rights that she would be waiving; (

d) interpreting the release to encompass rights Ms. Wieler was unaware of and that were not specifically set out in the release; and (

e) taking the view that an occupational health and safety officer could be bound by any release. [ 14 ] The special adjudicator held that it was not a matter of whether the OHS Officer lacked jurisdiction, but rather whether the complaint was barred by the release. [1] [ 15 ] Applying Horner v Saskatchewan Workers’ Compensation Board , 2013 SKQB 340 , 367 DLR (4th) 455 [ Horner ], the special adjudicator noted that the terms of the release were clear and unequivocal, and the release was signed after Ms. Wieler had ample time to think about the matter.

She had obtained legal advice, payment had been made by the Home in consideration of the release, and Ms. Wieler had not argued that the release was ineffective by virtue of any contract law principles. As such, the release was valid and her complaint was barred. [ 16 ] The special adjudicator rendered her decision on May 28, 2014. On April 29, 2014, the OHS Act was repealed and the Saskatchewan Employment Act was proclaimed in force, which brought the appeal provisions of the new Act into play. [ 17 ] On June 12, 2014, Ms.

Wieler appealed the special adjudicator’s decision to the Board pursuant to s. 4-8(2) of the Saskatchewan Employment Act : Right to appeal adjudicator’s decision to board 4-8(2) A person who is directly affected by a decision of an adjudicator on an appeal pursuant to

Part III may appeal the decision to the board on a question of law. V. Decision of the Saskatchewan Labour Relations Board

[18] On appeal from the special adjudicator’s decision, Ms. Wieler argued the following: (

a) under s. 28 of the OHS Act, after an occupational health and safety officer concludes that discriminatory action has beentaken, he or she must investigate – the officer cannot conclude that he or she lacks jurisdiction or the complaint is barred; (

b) because the only evidence regarding occupational health and safety procedure presented at the hearing was offered by aformer occupational health and safety officer, Andrea Dunkle, this evidence must be considered as being uncontroverted and the specialadjudicator erred by ignoring it; and (

c) the special adjudicator erred in law by holding that the waiver barred the complaint, as the rights contained in occupationalhealth and safety legislation are of a special class that cannot be waived or varied by a release. [19] In reliance upon DJB Transportation Services Inc. v Bolen, 2010 SKCA 50, 318 DLR (4th) 174 [DJB Transportation], theBoard held that questions of jurisdiction are subject to the correctness standard of review. The Board then turned to Ms.

Wieler’sargument regarding jurisdiction, noting at paragraph 32 that she had not challenged the sufficiency of the reasons provided by the OHSOfficer and, therefore, had limited the scope of her appeal to the correctness of the OHS Officer’s finding that he lacked jurisdiction. [20] The Board agreed with Ms. Wieler that Prince Albert District Health Board v Jeff Parr (1999), (SK CA),177 Sask R 97 (CA) [Parr], established that “the OHS Act falls within a class of legislation which is public interest legislation whichmay not be waived or varied by private contract” (Board Decision at para 42).

However, on review of all of the cases provided by theparties, the Board derived additional principles (at para 61): (

a) following an event that triggers the right to make a complaint, that right becomes personal to the individual and, as such, theindividual may choose to negotiate a resolution without a hearing; (

b) if a release is given in respect of a personal right, the validity of the release must be reviewed; and (

c) whether the triggering event occurred before or after execution of the release must also be considered. [21] The Board noted that Ms. Wieler had not presented any evidence to either the special adjudicator or the Board to suggest therelease was not valid and enforceable. Instead, the Board was presented with evidence that consideration was given for the release andtherefore the law of accord and satisfaction and the prohibition against double recovery were engaged.

The Board held that neither thespecial adjudicator nor the OHS Officer had erred by finding the release was valid and enforceable and, thereby, had committed no errorby declining to proceed with the matter (in paragraphs 61 to 64). VI. Jurisdiction and Standard of Review [22] Ms. Wieler’s right of appeal to this Court is found in s. 4-9(1) of the Saskatchewan Employment Act: Appeal to Court of Appeal 4-9(1) With leave of a judge of the Court of Appeal, an appeal may be made to the Court of Appeal from a decision of the board pursuantto

section 4-8 on a question of law. Justice Caldwell granted leave to appeal on January 29, 2015 (2015 SKCA 8). [23] The parties both argued that where a right of appeal is one restricted to a question of law, the standard of review iscorrectness. In support of their arguments, they referred the Court to DJB Transportation (at paragraph 36), saying that, as in thatdecision, which involved the Labour Standards Act, RSS 1978, c L-1, repealed (a precursor to the Saskatchewan Employment Act), thestandard of review should be correctness.

Having not been presented with any arguments to the contrary on this point, I have proceededto a review of the question of law in this case on the basis of a correctness standard of review. I must add, however, that the issue of thecorrect standard of review in appeals such as this remains an open matter: see Edmonton (City) v Edmonton East (Capilano) ShoppingCentres Ltd., [2016] 2 SCR 293, 2016 SCC 47. VII. Analysis [24] This is Ms. Wieler’s third appeal. On each appeal, the issues have changed slightly but underlying Ms. Wieler’s claim are twoassertions: (

a) the OHS Officer erred by declining jurisdiction to investigate her complaint; and (

b) she could not in any circumstanceswaive her rights under the OHS Act. [25] At the outset, it is important to frame this analysis by observing this is an appeal from a decision of the Board on a question oflaw. It is also important to note this is not an appeal from the decision of the OHS Officer. I say this because at the core of the Board’sdecision is the conclusion that the special adjudicator did not err in law when she determined Ms. Wieler had signed a release that hadthe effect of barring her from bringing a complaint under the OHS Act.

It is the Board’s determination in relation to that question that isat the core of Ms. Wieler’s appeal to this Court. [26] Having said that, it is quite clear the OHS Officer should not have said the execution of a release by Ms. Wieler placed her“outside of the jurisdiction” of the OHS Act. As the special adjudicator stated, this is not a matter of “jurisdiction”. The issue waswhether Ms. Wieler could, as a matter of law, waive her rights under the OHS Act.

The OHS Officer had all the jurisdiction he needed tomake that assessment. [27] The OHS Officer’s reasons do not reflect to what extent he reviewed the situation or assessed Ms. Wieler’s complaint, but her

appeal to the special adjudicator, and then to the Board, was not about the adequacy of the OHS Officer’s reasons: [32] No complaint was made by the Appellant regarding the extent of the reasons given by the OHS Officer in this letter, but rather, the Appellant objected to the fact that the OHS Officer, by this letter, declined to take jurisdiction over the complaint and failed to make a determination as to whether or not discriminatory action had taken place.

In short, the Appellant argued that the “officer cannot decide that there is ‘no jurisdiction’ to investigate”. ( Board Decision ) [ 28 ] More importantly, Ms. Wieler’s appeal to the special adjudicator, unlike her appeal to the Board and to this Court, was not limited to a question of law. Given this, with her appeal to the special adjudicator, Ms.

Wieler had the opportunity to present evidence to demonstrate the extent of the difficulty at the Home – in an actual hearing. [ 29 ] A special adjudicator, appointed under the OHS Act , has all the powers of a commissioner appointed pursuant to The Public Inquiries Act, 2013 , SS 2013, c P-38.01: Special adjudicators 48.1

(1) The Lieutenant Governor in Council, on the recommendation of the minister, shall appoint one or more special adjudicators to hear appeals from a decision of an occupational health officer respecting any matter involving harassment.

(2) In addition to any powers conferred on special adjudicators by this Part, a special adjudicator has: (

a) the powers of a commissioner pursuant to The Public Inquiries Act ; and (

b) any prescribed powers. ( OHS Act ) [ 30 ] By virtue of s. 56.3(2) of the OHS Act , s. 52(2) to (5) apply to a special adjudicator: Hearing of appeals by adjudicator … 52

(2) An adjudicator may determine the procedures by which the hearing is to be conducted.

(3) An adjudicator is not bound by the rules of law concerning evidence and may accept any evidence that the adjudicator considers appropriate.

(4) An adjudicator may determine any question of fact that is necessary to the adjudicator’s jurisdiction.

(5) No proceedings before or by an adjudicator shall be invalidated by reason of any irregularity or technical objection. [ 31 ] In this case, the special adjudicator specifically noted the parties had agreed that the occupational health and safety file materials would be part of the record for the purpose of the hearing. These materials are extensive. The complaint itself is six pages in length and is supported by 70 additional pages. The special adjudicator also heard viva voce testimony, but the only witness called on Ms.

Wieler’s behalf was Andrea Dunkle, the former occupational health and safety officer who Ms. Wieler consulted immediately after her termination, and who testified that Ms. Wieler’s release had no impact on her complaint. According to Ms.

Dunkle, when an occupational health and safety officer receives a complaint, the officer must proceed with an investigation and, if a prima facie case is demonstrated, it is up to the employer to show there was “good and sufficient other reason” for the action that was taken ( OHS Act , s 28(4)). [ 32 ] The Home also called evidence – in the form of the person who was the primary subject of Ms. Wieler’s complaint. We do not have a transcript of that evidence, but we have the special adjudicator’s

summary of it: [ 33 ] Ms. Woods was called as a witness for the Respondent. Ms. Woods is the individual who is primarily the subject of Ms. Wieler’s complaint. Ms. Woods is no longer with Saskatoon Convalescent Home. She was the Administrator/Director of Care and had been with Saskatoon Convalescent home since 2004. She left in March of 2013. Ms. Woods was responsible for hiring Ms. Wieler in August of 2012 as Assistant Director of Care. Ms. Woods testified that Ms. Wieler’s position was terminated in January of last year because she determined Ms. Wieler was not suitable for the job . [ 34 ] Ms.

Woods testified that on January 29, 2012 she met with Ms. Wieler to advise her that she was … no longer the Assistant Director of Care with Saskatoon Convalescent Home and was being terminated. A letter of termination and Release form were provided to Ms. Wieler at the meeting. (Emphasis added) [33] In her conclusion, the special adjudicator made a finding that Ms. Wieler’s complaint was not about systemic issues in the workplace, but rather it was personal to Ms. Wieler and further that the release she gave waived her statutory right: [58] Ms.

Wieler upon her termination was given a release form that was clear and concise and she had ample time to read it over and understand it. The Release specifically refers to and covers any claim arising from Ms. Wieler’s termination, which is the alleged discriminatory action . Ms. Wieler did not sign the Release form in the presence of her employer or on the date it was given to her. There is evidence she sought legal advice before signing the Release and returning it to her employer. [59] As in Chow [1999 ABQB 1026] and Horner [2013 SKQB 340] this was personal to Ms. Wieler, and not others in the workplace .

… [61] The Appellant’s primary argument was that one cannot waive a statutory right. No evidence was adduced that the Release on itsface was ineffective because it was obtained in circumstances that made it unconscionable, or other contract law principles. [62] In conclusion, I find that Ms. Wieler’s complaint to OHS was barred by the Release signed by her on February 24, 2013. I do notfind this to be a matter of OHS lacking jurisdiction, but the result is the same. (Emphasis added) [34] It is quite clear Ms. Wieler wanted to limit the question before the special adjudicator.

The only testimony that the specialadjudicator received on the question of the nature of Ms. Wieler’s complaint was that of the Home, which it appears the specialadjudicator accepted when she found that Ms. Wieler’s complaint was personal to her. Ms. Wieler wanted the special adjudicator to holdthat in no circumstance can an employee waive a statutory right. The special adjudicator, however, did not accept that principle.

In thecircumstances presented to her, which included the Home’s evidence, she concluded, as a matter of law, that the OHS Act permits anindividual to make a settlement with respect to a past infraction personal to the complainant. Indeed, in Ms. Wieler’s case, the specialadjudicator concluded this: Ms.

Wieler had effectively settled her claim. [35] That brings us to the principal legal issue before the Board, which is whether the special adjudicator erred when she foundthat a complainant under the OHS Act could waive a right to assert a personal wrongdoing that had occurred in the past. [36] Each of the special adjudicator and the Board referred to the same case law: Brunswick Mining and Smelting Corporation vSavoie (1991), (NB CA), 83 DLR (4th) 521 (NBCA) [Savoie]; Parr; Chow v Mobil Oil Canada, 1999 ABQB 1026,[1999] 12 WWR 373 [Chow]; and Horner.

The special adjudicator distinguished Savoie and Parr on the basis that they dealt with futurerights. She did, however, find the reasoning in Chow and Horner persuasive and more applicable to the case before her. [37] The special adjudicator found the conclusion from Chow to be particularly apt to describe the law she would apply: [52] The Court [in Chow] distinguished between contracting out of future discriminatory acts and a settlement concerning alleged pastbreaches of the Act.

The Court found that: [67] As should be clear from the above, I acknowledge that parties are prohibited from contracting out of the Act where such a contractdoes not effect a greater protection of human rights than that which is enshrined in the legislation. However, I am of the view that arelease of past alleged acts of discrimination is not a contracting out, as that term has been used by the Supreme Court. The fundamentaldifference is that the type of release I have been referencing has no application to future discriminatory acts and is a settlementconcerning only an alleged past breach of the Act.

Additionally, a release applies exclusively to the signatory, not to employeesgenerally. (Emphasis added, special adjudicator’s May 28, 2014, decision) [38] The special adjudicator also referred to Horner, which follows Chow, commenting favourably on the policy articulated in thatdecision with respect to the importance of settlements in litigation: [57] The Court in Horner addressed the policy implications of a finding that the release was not binding on Ms. Horner in that case. Atparagraphs 46 and 47 the Court stated: [46] Both defendants underscore the policy implications presented by Ms. Horner’s position.

Counsel for Saskatchewan makes the pointthat Ms. Horner’s position, if accepted, would make it impossible for any government agency with responsibilities based on the Charterto enter into settlement arrangements with potential litigants who advance Charter-based claims.

If a citizen is not able to release agovernment agency from a claim based on an alleged Charter violation, disputes could not be settled and all disputes would of necessityproceed to trial. [47] Such a result, in my view, would be contrary to the values of finality and certainty that litigation settlement is intended to promote.On the one hand are the interests of the government defendants, which are in no different position than other litigants in the sense theymust balance risk, competing interests and finite resources in crafting an appropriate litigation strategy.

Removing the possibility of abinding release would effectively fetter the government’s ability to settle Charter-based claims. It is worth noting that releases providedin favour of public bodies and governments have been held to be enforceable and bar the subsequent legal proceedings contemplated bythe terms of the release agreement. Subsequent legal proceedings commenced in the face of a binding release have been found to be anabuse of process. (Roussy v Red Seal Vacations Inc., 2011 SKCA 116, 377 Sask. R. 68, Marble (Litigation Guardian of) v.Saskatchewan, 2003 SKQB 282, 236 Sask.

R. 14) (Emphasis added) [39] On the appeal to the Board, the record is fixed by s. 4-8(4) of the Saskatchewan Employment Act (which is now in force) and,as is befitting an appeal on a question of law, does not require a transcript: Right to appeal adjudicator’s decision to board 4-8(4) The record of an appeal is to consist of the following: … (

b) in the case of an appeal pursuant to

Part III, any written decision of an occupational health officer or the director of occupationalhealth and safety respecting the matter that is the subject of the appeal;

(

c) the notice of appeal filed with the director of employment standards pursuant to

Part II or with the director of occupational health andsafety pursuant to

Part III, as the case may be; (

d) any exhibits filed before the adjudicator; (

e) the written decision of the adjudicator; (

f) the notice of appeal to the board; (

g) any other material that the board may require to properly consider the appeal. [40] It was on the basis of this record that the Board, too, analyzed the case law that had been placed before the specialadjudicator, deducing the following principles: [61] From these cases, we can distill 4 principles. They are: 1. Legislation, such as occupational health and safety legislation is for the general benefit of workers, and the benefit thereof maynot be bargained away. As pointed out by Mr. Justice Vancise in [Parr]: [10] Occupational health and safety is an issue of substantial public policy.

The responsibility to provide a safe workplace is by virtue ofThe Occupational Health and Safety Act, 1993 the responsibility of the employer.

Section 3 provides that every employer (which I taketo mean union and non-union employer) shall ensure the health, safety and welfare of every worker in the workplace. It is a right owed toall employees by law and is not something an employee or his bargaining agent need bargain. As Professor K. Swinton notes, “theresponsibility to provide a safe workplace is the employer’s and no worker should be required to exchange his or her wages for increasedprotection of his or her health. 2. However, once a “triggering event” occurs which provides an individual with the right to make a complaint under suchlegislation, that right becomes personal to the individual. As such, the individual may: (

a) ignore the incident and make no application under public benefit legislation; (

b) make an application, but withdraw it after it has been filed; (

c) negotiate and reach a resolution of the issue without a hearing; or (

d) resolve the issue through a hearing and/or appeals in accordance with the legislative scheme. 3. Where a release is given in respect to a personal right which has occurred under legislation such as the OHS Act, the validity ofthat release must be reviewed. 4. In addition to consideration of the validity of the release, consideration must be given to the timing of the “triggering incident”and the timing of the release. (Footnotes omitted, Board Decision) [41] For my part, the above-enunciated principles should be applied in circumstances such as these, with one exception and oneaddition.

The exception is that an event triggering the right to complain “may”, but not necessarily “must”, become personal to theindividual. The provisions of the OHS Act in question have a dual purpose – a broader societal interest in promoting healthy workenvironments, as well as a private interest possessed by individuals affected by specific violations of the Act. This means that any eventshould be examined in light of both its public interest implications and its personal consequences.

As to the addition, I would add that anoccupational health and safety officer has the authority to review a release to determine, as a matter of first instance, whether it is validand enforceable. In all other respects, this list of principles applies to the resolution of the legal issue in this case: Can a person, who hasbeen personally wronged under the OHS Act, grant an effective release? [42] As I have indicated, the OHS Officer did err when he said Ms. Wieler’s “situation is outside of the jurisdiction of OHS”.

Arelease cannot take away an officer’s “jurisdiction” nor could it, on its own, preclude or prevent an investigation. An officer derivesjurisdiction from the OHS Act (which I repeat): Referral to officer 28(1) A worker who, on reasonable grounds, believes that the employer has taken discriminatory action against him or her for a reasonmentioned in

section 27 may refer the matter to an occupational health officer.

(2) Where an occupational health officer decides that an employer has taken discriminatory action against a worker for a reasonmentioned in

section 27, the occupational health officer shall issue a notice of contravention … . [43] An employee who has raised health and safety concerns and is thereafter terminated but, nonetheless, signs a release in returnfor receiving a severance payment, may be able to pursue a complaint against an employer under occupational health and safetylegislation in spite of having granted a release. Resolution of the issue will depend on the nature of the complaint and the form of therelease.

A release granted in the face of a systemic workplace issue may not prevent an occupational health and safety officer fromfollowing up on the individual’s complaint of discrimination, either alone or in connection with complaints by other individuals.Robichaud v Canada (Treasury Board), (SCC), [1987] 2 SCR 84, is a good illustration of this principle. In that decision,the Supreme Court addressed a matter involving a human rights complaint that an employee had been sexually assaulted by hersupervisor. Before the matter was argued, a settlement agreement was entered into between the parties.

The existence of this settlementagreement was conveyed to the Court. With respect to this point, La Forest J. wrote, “Finally, we were advised that a settlement has beenreached with Mrs. Robichaud, but this may not provide a full corrective to the problem identified” (at 97).

[ 44 ] It is appropriate within the complaint process to examine the circumstances of the settlement to ensure there is nothing that offends the broader societal interest that the OHS Act is intended to address, while at the same time respecting the freedom to resolve personal rights amicably without resort to cumbersome and protracted proceedings. In this case, however, I interpret the special adjudicator’s reasons as holding that there was no systemic complaint or, at least, none was proven.

In addition, as recently expressed in Nova Scotia (Human Rights Commission) v Charlton , 2017 NSCA 55 at para 38 , “[t]here are limited legally-recognized bases to vitiate a contract – e.g., fraud, misrepresentation, undue influence, duress, mistake. Simple fairness or reasonableness and generic public interest are not among them” (emphasis added, at para 4(e)). The complaint was personal to Ms.

Wieler and had been effectively released by her. [ 45 ] The scope of an occupational health and safety officer’s task, for the purposes of s. 28, permits the officer to determine that, even if a potentially discriminatory action took place (or is presumed to have taken place), the remedy for the same can be ousted or barred by a release, depending on its effectiveness in the circumstances in which it is given.

It is a question of a loss of remedy, not jurisdiction. [ 46 ] While the OHS Officer erred with respect to the statement of his jurisdiction, and may also have erred by not performing some form of investigation, the Board did not err by not intervening; and nor should this Court now intervene for two reasons. [ 47 ] First, the fact that the OHS Officer erred in describing his function does not mean that an officer cannot take into account a “Release and Waiver” document such as exists here or that this particular release is not relevant to either the special adjudicator’s, the Board’s or this Court’s analysis.

As others have said before me, an important aspect of modern day litigation of all sorts is arriving at mediated solutions, whether with or without the intervention of an intermediary. This aspect of Horner , referred to by the special adjudicator, clearly applies in this case. [ 48 ] Second, the appeal to the special adjudicator was based on the assertion that an employee can never waive his or her rights under the OHS Act under any circumstances. It was not about whether the release was valid or enforceable. This appeal is properly decided on the basis that Ms.

Wieler’s release prevented her from seeking additional relief under the OHS Act . [ 49 ] In these circumstances, I do not find any error in the Board’s statement of the law pertaining to the essential issue before it, which was whether a release can be effective to bar a complaint that is personal to the complainant and which had occurred in the past. In this case, the Board applied that principle correctly. I would dismiss the appeal on that basis. VIII. Conclusion [ 50 ] The appeal is dismissed. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Jackson J.A.” for Wilkinson J.