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LABOUR RELATIONS BOARDS - Appeals and judicial review - Standard of review - Reasonableness

Monday, March 26, 2018 @ 11:13 AM  


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Application by Tucker for judicial review of a decision of the Newfoundland and Labrador Labour Relations Board (the Board). Tucker was employed by the second respondent HSE Integrated Limited as a rescue advisor from February 2015 to March 2016. He was assigned to a construction site where HSE was contracted to perform certain duties for Astaldi Canada, the general contractor. Tucker had concerns with health and safety issues at the worksite. He reported the issues to his HSE supervisor on site and to an HSE manager. He was unsatisfied with the response and reported the matter to the project manager for Astaldi. The project manager rectified the situation. Tucker did not report the alleged safety risk to the Occupational Health and Safety Division of Service NL (OHS Division) or any other provincial government representative. Astaldi cancelled its contract with HSE shortly after Tucker’s report to the project manager. HSE then terminated Tucker’s employment. He filed a complaint with the Board and HSE made a preliminary objection, submitting that the Board was without jurisdiction to hear Tucker’s complaint. The Board concluded that by reporting his concerns to a principal contractor and not to the OHS Division, Tucker failed to comply with the mandatory provisions of the Occupational Health and Safety Act (OHS Act) and was therefore precluded from relying on the protections afforded by the legislation. Tucker took the position that the Board erred by failing to find that he was protected against discriminatory dismissal under section 49(c) of the OHS Act. He also submitted that the Board erred by basing its decision on precedents from Nova Scotia and New Brunswick where the legislation differed from the OHS Act. HSE took the position that the Board’s decision was reasonable.

HELD: Application dismissed. It was reasonable for the Board to conclude that section 47 of the OHS Act made it mandatory that a worker report to the OHS Division or an OHS Officer when his supervisor failed or refused to satisfactorily remedy a safety concern. The language of sections 46 and 47 of the OHS Act permitted such a conclusion as a reasonable outcome. It was also reasonable for the Board to adopt the reasoning from cases in Nova Scotia and New Brunswick as the legislation in those jurisdictions had complementary regimes and mandatory reporting issues in common. Furthermore, the Board provided a policy based rationale for its conclusion and was alive to the specific issue raised by Tucker. The Board justified the outcome of its decision in a manner that was both transparent and intelligible.

Tucker v. Newfoundland and Labrador (Labour Relations Board), [2018] N.J. No. 49, Newfoundland and Labrador Supreme Court - General Division, R.P. Stack J., February 19, 2018. Digest No. TLD-March262018001