Nova Scotia (Environment and Labour) v. Annapolis Valley Regional School Board

Nova Scotia (Environment and Labour) v. Annapolis Valley Regional School Board Court Court of Appeal Date 2001-07-05 Citation 2001 NSCA 109 Docket CA 1772263 Judge/Registrar/Adjudicator Glube, Constance R. (Honourable Chief Justice) (CA) Document Type Decision Decision Content Date: 20010705 Docket: CA 172263 NOVA SCOTIA COURT OF APPEAL [Cite as: Nova Scotia (Environment and Labour) v. Annapolis Valley Regional School Board , 2001 NSCA 109] BETWEEN: DIRECTOR, OCCUPATIONAL HEALTH AND SAFETY DIVISION representing the Department of Environment and Labour, representing Her Majesty the Queen in Right of the Province Applicant/Appellant - and - THE OCCUPATIONAL HEALTH AND SAFETY APPEAL PANEL designated pursuant to Section 68 of the Occupational Health and Safety Act to hear the matter of an appeal noted as Case No. 2000-0030 and THE ANNAPOLIS VALLEY REGIONAL SCHOOL BOARD Respondents - and - NOVA SCOTIA TEACHERS UNION Party - and - LOIS GILLIS Party - and - CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3876 Party DECISION Counsel: Sarah M. Bradfield for the appellant Patricia Sherwood for the respondent, The Occupational Health and Safety Appeal Panel Leroy M. Lenethen, Q.C., for the respondent, Annapolis Valley School Board Terry L. Roane, Q.C. for the Party, Nova Scotia Teachers Union and Lois Gillis Gordon N. Forsyth for the Party, Canadian Union of Public Employees, Local 3876 Application Heard: June 28, 2001 Decision Delivered: July 5, 2001 BEFORE THE HONOURABLE CHIEF JUSTICE CONSTANCE R. GLUBE IN CHAMBERS GLUBE, C.J.N.S.: (In Chambers) [1] This is an application under Civil Procedure Rule 62.10(2) to stay execution until an appeal is heard from a decision dated June 1, 2001, rendered by the Occupational Health and Safety Appeal Panel (the “Panel”) designated to hear an appeal under the Occupational Health and Safety Act, S.N.S. 1996, C. 7 as amended (the “Act”). The appellant is the Director, Occupational Health and Safety Division (the “Division”) of the Department of Environment and Labour (the “Department”). Only the Director and the Annapolis Valley Regional School Board (the “Board”) participated in the stay application. Counsel for the Nova Scotia Teachers Union (the “Teachers Union”) and Ms. Gillis and for the Canadian Union of Public Employees, Local 3876, and a representative of the Panel were present at this application but just maintained a watching brief. [2] Ms. Lois Gillis, a teacher employed by the Board and a member of the Teachers Union, was assigned to teach at the Windsor Regional High School (the “School”). [3] Late in 1999, Ms. Gillis exercised her right to refuse to work pursuant to s. 43 of the Act, due to health concerns which she attributed to the air quality at the School. She notified her Joint Occupational Health and Safety Committee (JOHSC) about her concerns and her decision. JOHSC has unanimously and continuously determined that she should not return to her workplace. She has not returned to work but continues to receive her salary and benefits. [4] Ms. Gillis notified the Division of the Department on several occasions, as did JOHSC by telephone and in writing. A representative of the Teachers Union and the Director of Human Resources were also in touch with the Division. [5] At no time did Ms. Gillis specifically request the Division to conduct an investigation of the workplace. [6] On September 5, 2000, the Board wrote requesting the Director to conduct an investigation. In response and since that time, the Director has continuously maintained the position that no one would investigate the work site until the provisions of the Act were met, namely, by Ms. Gillis, herself, reporting to the Division pursuant to subsection 43(2)(c) of the Act. This has been the Director’s position throughout and the interpretation of the section is one of the grounds of appeal. The Director believes an investigation is only initiated when the employee reports personally to the Division. Further, it is the Director’s position that even if the employee did report, the Division would only address whether or not the employee had reasonable grounds for believing her health or safety was endangered and would not address whether or not the workplace was safe. [7] Pursuant to the Act, the Board appealed the Director’s decision not to decide whether the workplace was safe. The Panel heard the appeal in April 2001, and rendered its decision June 1, 2001. The Board’s appeal was dismissed. However, the Panel in its reasons found that Ms. Gillis had complied with the Act (contrary to the Director’s opinion) and that having done so, her right to have the refusal investigated by the Division was automatic. The Panel ordered that within 30 days of the receipt of its decision, the Director or his designee was to investigate the work refusal by Ms. Gillis and provide advice as to whether she should return to work. Finally, the Panel reserved the jurisdiction to resolve any issues arising between the parties with respect to the implementation of the Panel’s decision. [8] The Director received the decision of the Panel on June 5, 2001. A notice of application for leave to appeal and notice of application for stay of execution were filed on June 21, 2001. ANALYSIS [9] The parties agree that the test for a stay of execution continues to be as set out in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341 at pp. 346-7. The primary test is in three parts: (1) that there is an arguable issue raised on the appeal; (2) that if the stay is not granted and the appeal is successful, the appellant will suffer irreparable harm; and (3) that the balance of convenience between the parties favours the granting of the stay. [10] If the primary test is not met, Fulton sets out that there then must be exceptional circumstances that would make it fit and just to grant the stay. 1. Arguable Issue [11] Both the Director and the Board agree that the Director raises an “arguable issue” as it is alleged that the Panel made an error of law in its interpretation of portions of the Act. If argued successfully, this could lead to a reversal of the Panel’s decision. [12] It is not for the Chambers judge hearing the stay application to speculate on the outcome of the appeal or examine the merits of the argument. (Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R. (2d) 171 (C.A.).) [13] I agree that the applicant has raised an arguable issue. 2. Irreparable harm to the applicant if the stay is not granted [14] The Director submits the applicant will suffer irreparable harm if the stay is not granted and the appeal is subsequently allowed. His argument is based on the decision of O’Connor v. Nova Scotia, [2001] N.S.J. No. 90 (N.S.C.A., in Chambers) in which Cromwell, J.A. considered this issue in the specific context of access to information, the subject matter of that stay application (para. 14). In that case, if the stay was not granted and the arguably privileged information was released, but subsequently the appeal succeeded, the release of information would be unlawful and could not be compensated or reversed. The information once released could no longer be privileged. Also, it was argued that the release of the information would render the appeal moot. [15] The Director submits that if the stay is not granted and the appeal is subsequently allowed, the investigation will have been completed which could amount to the Director performing a legal wrong which could not be reversed and could possibly render the decision moot. [16] The Board submits there is no harm nor risk to the Director if the stay is not granted and the appeal is allowed. If the investigation has been completed, it will essentially just be the cost of the time spent doing the investigation. Thus a monetary award could compensate that concern. [17] Although the Director suggests a legal wrong will have occurred, I am unable to accept that submission. No one is hurt by an investigation taking place. If anyone was going to be hurt, it might be Ms. Gillis. However, she could appeal an unfavourable decision of the Director to a panel (s. 69 of the Act). An investigation would not amount to a wrong which cannot be undone or cured. [18] I am unable to find that O’Connor or the cases cited therein apply to this application. [19] Although the requirement for the Director to conduct an investigation may or may not be found to be a requirement of the Act in these circumstances, it is not the same as release of privileged information in O’Connor or the right against self-incrimination in National Financial Services Corp. v. Mitton et al (1998), 107 B.C.A.C. 80, or the likelihood of detention and possible torture in Suresh v. Canada (Minister of Citizenship and Immigration) (1999), 249 N.R. 28. In those cases, irreparable harm would befall the applicant if the stay was not granted. That is not present here. [20] The applicant has not met the requirements for this part of the test for a stay. 3. Balance of Convenience [21] If I am wrong on the second test, then on the third test, the position of Ms. Gillis will not change. She will have her right of appeal if the Director’s investigation finds she should return to work. As for the Board, the Director submits it is only a matter of delay. However, the affidavit of Mr. Wayne MacDonald, Director of Human Resources for the Board, points out that up to June 30, 2001, $145,241.39 has been spent on maintaining Ms. Gillis and substitute teachers and a further delay of 6 months would cost an additional $38,177.16. The Director merely argues that public funds and resources would be expended. [22] In my opinion, the time and resources of the Director for an investigation are unknown, but would probably be insignificant in comparison to what has been spent by the Board. [23] If necessary, I would find the balance of convenience was against the Director. [24] The applicant has not met the requirements of the three part test. 3. Secondary test of exceptional circumstances [25] In my opinion, I am unable to find exceptional circumstances on behalf of the Director that would make it fit and just to grant the stay. His only argument on the secondary text related to the use of public funds and resources which I have already dealt with. CONCLUSION [26] For the reasons set out above, the application for a stay of execution is dismissed. Although the Board requested costs, no submissions were made at the Hearing. The costs will be dealt with by the panel hearing the appeal unless the parties agree otherwise. [27] This decision is being rendered at the end of the 30 day period within which the Director or his designee was to complete the investigation. However, as the panel reserved jurisdiction to resolve any issues relating to implementation, unless the parties can agree, I would ask them to return to the panel as soon as possible and that a new time period be set for the investigation to be completed. The Director should not be considered to be in breach of the panel’s order as it was not unreasonable for this application to be made. Glube, C.J.N.S.