Section 129(7) - Right to Appeal
PART II, LABOUR CODE  Appealing the Safety and Health Officer's ruling and/or direction(s) ... Subsection 129(7) of the Canada Labour Code, Part II, gives the right to appeal a decision of no danger made by a health and safety officer.  Section 146 of Part II gives the right to appeal directions issued by a health and safety officer.

Who may appeal?

If you are an employee who refused to work because you believed there was a danger (or a person designated by the employee) and you disagree with the health and safety officer’s decision of no danger, you may appeal that decision.

If you are an employer, employee or union that feels aggrieved by a direction issued by a health and safety officer, you may appeal that direction.

What is the time limit?

In the case of a health and safety officer’s decision of no danger, you have 10 calendar days after receiving the written decision to appeal that decision. Remember, even if you appeal the decision, you are not entitled to continue to refuse to work.

In the case of a direction issued by a health and safety officer, you have 30 calendar days after the date of the direction being issued or confirmed in writing to appeal that direction. Remember, even if you appeal the direction, you must still comply with it until the appeals officer varies or rescinds it. However, pursuant to subsection 146(2) of Part II, the appeals officer may order a stay of the direction, if the employer, employee or trade union requests it.

How to appeal?

Appeals of decisions of no danger or of directions must be made in writing to an appeals officer at the address below.

Who is the appeals officer?

The appeals officer is designated by the Minister of Labour under subsection 145.1(1) of Part II, to hear all appeals of no danger decisions or of directions issued by health and safety officers.

The appeals officer is an administrative tribunal that has quasi-judicial powers. Master of his or her own procedure, the appeals officer hears all appeals in an impartial and independent manner in accordance with the principles of natural justice and fairness.

What is the appeals officer’s role?

The appeals officer inquires, in a summary way and without delay, into the circumstances of decisions or directions, as provided by subsection 146.1(1) of Part II.

Under this provision, the appeals officer may vary, rescind or confirm a decision or direction, or issue a new direction if he or she decides that there is a danger.

What are the appeals officer’s powers?

Pursuant to section 146.2 of Part II, the appeals officer may summon witnesses and compel them to produce documents; administer oaths; adjourn or postpone the proceeding; abridge or extend time limits; make a party to the proceeding any person or group that could be affected by the decision; decide any matter without holding an oral hearing.

What is the appeals procedure?

The applicant must provide, when making an appeal:

• the name, address and telephone number of:

  • the employer or the employer's representative;

  • the employee concerned or the employee's representative;

  • the union, if any;

• a copy of the decision of no danger or of the direction being appealed.

Upon receiving the appeal, the Canada Appeals Office on Occupational Health and Safety sends an acknowledgment to the applicant.

The Office then contacts the parties and the health and safety officer concerned to obtain all relevant documentation.

The applicant must establish by the relevant facts and Part II provisions that the decision or direction was not justified and provide, if requested, written reasons to support the appeal.

If the parties consider that the case is urgent or that the appeals officer should visit the work place, they must so advise the appeals officer.

After reviewing the case, the appeals officer determines which procedure to follow, such as:

• proceed without an oral hearing, by using the parties’ written submissions;

• conduct a hearing, or

• adopt any other appropriate procedure.

The parties will receive copies of all documents submitted to the appeals officer.

How to prepare for the hearing?

The parties must ensure that they bring to the hearing all the documents relevant to the case. If they plan to introduce new documents during the hearing, they should be able to immediately provide copies to the appeals officer and the other parties.

Parties who wish to call witnesses may request that the appeals officer issue summons (subpoena) to the witness or witnesses to appear and compel them to produce relevant documents. Parties should give reasons for their request and indicate all the information needed to identify witnesses and documents.

How is the hearing held?

The appeals officer may hold formal or informal hearings. Usually, hearings follow this procedure:

• The appeals officer ensures that the parties have all the documentation.

• The appeals officer invites anyone who wishes to make a statement to do so before hearing the witnesses.

• The appeals officer asks the health and safety officer to explain the circumstances that led to the no danger decision or the directions under appeal.

• The appeals officer hears the applicant's witnesses, then those of the other interested parties.

• The appeals officer may ask the witnesses to take an oath or make a solemn affirmation.

• Witnesses may be cross-examined by the opposing party.

• After the witnesses have been heard, the parties summarize their position and argumentation.

• The hearing is closed.

What of the Appeals Officer's decision?

As stipulated by subsection 146.1(2) of Part II, the appeals officer provides a written decision, with reasons, and a copy of any ensuing direction, to the employer, employee or trade union.

The appeals officer sends copies of the decision to all parties.

Appeals officer decisions are final and binding. However, they may be subject to judicial review by the Federal Court.