Advisory Circulars

Commercial & Business Aviation

OVERVIEW OF THE AMENDMENTS TO
PART II OF THE CANADA LABOUR CODE

Subject:  12. Appeals of Decisions and Directions
(sections 145.1 and 146)

AMENDED CODE EXPLANATION/APPLICATION
145.1(1) The Minister may designate as an appeals officer for the purposes of this Part any person who is qualified to perform the duties of such an officer. Besides the change in nomenclature (from "Regional Safety Officer" to "Appeals Officer"), appeals officers have additional powers under the amended Code.
(2) For the purposes of sections 146 to 146.5, an appeals officer has all the powers, duties and immunity of a health and safety officer. An appeals officer, who holds all the powers and duties of a health and safety officer, is authorized to issue a direction to the employer if he or she decides to overturn the decision of "no danger" in cases of refusal to work.
146.(1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing. The time frame for filing an appeal has been extended to thirty days instead of fourteen days as stipulated in the previous Code.
(2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction. A direction must be complied with immediately unless the appeals officer has allowed for a stay of the direction that is appealed by varying the compliance date.
146.1(1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may
(a) vary, rescind or confirm the decision or direction; and
(b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).
This clause provides the appeals officer with the authority to change a decision of "no danger" in the case of a refusal to work, or a direction, for which an appeal is requested. It also gives the appeals officer the authority to issue a direction if the decision of "no danger" is overturned.
146.1(2) The appeals officer shall provide a written decision, with reasons, and a copy of any direction to the employer, employee or trade union concerned, and the employer shall, without delay, give a copy of it to the work place committee or health and safety representative. The appeals officer is required to provide the employer, the employee, and the trade union if they were involved, a written decision of the appeal. The employer is then required to give a copy of the decision to the work place committee or health and safety representative.
146.1(3) If the appeals officer issues a direction under paragraph (1)(b), the employer shall, without delay, affix or cause to be affixed to or near the machine, thing or place in respect of which the direction is issued a notice of the direction, in the form and containing the information that the appeals officer may specify, and no person may remove the notice unless authorized to do so by the appeals officer. This provision parallels the requirement for a health and safety officer's direction related to danger to be similarly posted near the source of danger. In this case, however, the employer and not the appeals officer must post the direction.
146.1(4) If the appeals officer directs, under paragraph (1)(b), that a machine, thing or place not be used or an activity not be performed until the direction is complied with, no person may use the machine, thing or place or perform the activity until the direction is complied with, but nothing in this subsection prevents the doing of anything necessary for the proper compliance with the direction. This provision prohibits anyone from using a dangerous machine or thing or performing a dangerous activity that is the subject of a direction issued by an appeals officer until it is complied with. It does not preclude anything being done that is necessary to properly comply with the direction.
146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may The following paragraphs set out the powers of the appeals officer that were not entrenched in the previous Code.
(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence under oath and to produce any documents and things that the officer considers necessary to decide the matter;

(b) administer oaths and solemn affirmations;

(c) receive and accept any evidence and information on oath, affidavit or otherwise that the officer sees fit, whether or not admissible in a court of law;

(d) examine records and make inquiries as the officer considers necessary;

(e) adjourn or postpone the proceeding from time to time;

(f) abridge or extend the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence;

(g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer's opinion has substantially the same interest as one of the parties and could be affected by the decision;

(h) determine the procedure to be followed, but the officer shall give an opportunity to the parties to present evidence and make submissions to the officer, and shall consider the information relating to the matter;

(i) decide any matter without holding an oral hearing; and

(j) order the use of a means of telecommunication that permits the parties and the officer to communicate with each other simultaneously.

The Canadian Industrial Relations Board and the Public Service Staff Relations Board (for public servants) will continue to hear cases of disciplinary action.
146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any court. An appeals officer's decision cannot be questioned or reviewed in court except where provided by the Federal Court Act.
 
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