Occupational Health and Safety Tribunal Canada

		Date:	2019-02-15
		File No.:	2017-20
Between:
Canada Post Corporation, Appellant
and
Canadian Union of Postal Workers
and
Brad King, Respondents
Indexed as: Canada Post Corporation v. Canadian Union of Postal Workers
Matter:	Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an official delegated by the Minister of Labour
Decision:	The direction is confirmed.
Decision rendered by:	Pierre Hamel, Appeals Officer
Language of the decision:	English
For the appellant:	Mr. Daniel W. Ingersoll, Q.C., Legal Counsel and Mr. James B. Green, Legal Counsel, Cox & Palmer
For the respondents:	Mr. David Bloom, Legal Counsel, Cavalluzzo LLP
Citation:	2019 OHSTC 5

REASONS

 

• [1] These reasons concern an appeal brought by the Canada Post Corporation (Canada Post or the employer) under subsection 146(1) of the Canada Labour Code (Code) against a direction issued on May 29, 2017, by Ms. Deborah Gillis-Williams, in her capacity as official delegated by the Minister of Labour (ministerial delegate).The direction, issued under subsection 145(1) of the Code following an investigation by Ms. Gillis-Williams, concluded that the appellant had contravened paragraph 125(1)(z.16) of the Code and subsection 20.9(3) of the Canada Occupational Health and Safety Regulations (Regulations).

 

• [2] The direction reads as follows:

 

IN THE MATTER OF THE CANADA LABOUR CODE

PART II – OCCUPATIONAL HEALTH AND SAFETY

 

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

 

On May 29, 2017, the undersigned Official Delegated by the Minister of Labour conducted an investigation in the work place operated by CANADA POST CORPORATION, being an employer subject to the Canada Labour Code, Part II, at 6135 Almon Street, Letter Carrier Depot # 1, Halifax, Nova Scotia, B3K 2V0, the said work place being sometimes known as Canada Post – Letter Carrier Depot # 1.

 

The said Official Delegated by the Minister of Labour is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened;

 

No / No : 1

 

Paragraph 125.(1)(z.16) – Canada Labour Code Part II, Subsection 20.9(3) – Occupational Health and Safety Regulations

 

The employer has failed to appoint a competent person, who is impartial and seen to be impartial by the parties involved, to investigate the allegation of work place violence.

 

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than June 13, 2017.

 

Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time specified by the Official Delegated by the Minister of Labour, to take steps to ensure that the contravention does not continue or reoccur.

 

Issued at Halifax, this 29^th day of May, 2017.

 

(s) Deborah Gillis-Williams

[…]

 

• [3] The employer filed its Notice of Appeal on June 15, 2017. The Notice included an application for a stay of the direction, under subsection 146(2) of the Code. I dismissed the application for a stay for the reasons set out in Canada Post Corporation v. Canadian Union of Postal Workers and King, 2017 OHSTC 16.

 

• [4] I heard the appeal in Halifax on February 12 to 15, 2018 and on June 4 to 7, 2018. Final submissions were received on September 21, 2018.

 

• [5] For the sake of clarity of what follows, I quote here the more germane parts of the Regulations that come into play in the present appeal:

 

20.2 In this Part, “work place violence” constitutes any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.

 

20.3 The employer shall develop and post at a place accessible to all employees a work place violence prevention policy setting out, among other things, the following obligations of the employer:

 

• (a) to provide a safe, healthy and violence-free work place;

 

• (b) to dedicate sufficient attention, resources and time to address factors that contribute to work place violence including, but not limited to, bullying, teasing, and abusive and other aggressive behaviour and to prevent and protect against it;

 

• (c) to communicate to its employees information in its possession about factors contributing to work place violence; and

 

• (d) to assist employees who have been exposed to work place violence.

 

20. (1) In this section, competent person means a person who

 

• (a) is impartial and is seen by the parties to be impartial;

 

• (b) has knowledge, training and experience in issues relating to work place violence; and

 

• (c) has knowledge of relevant legislation.

 

(2) If an employer becomes aware of work place violence or alleged work place violence, the employer shall try to resolve the matter with the employee as soon as possible.

 

(3) If the matter is unresolved, the employer shall appoint a competent person to investigate the work place violence and provide that person with any relevant information whose disclosure is not prohibited by law and that would not reveal the identity of persons involved without their consent.

 

(4) The competent person shall investigate the work place violence and at the completion of the investigation provide to the employer a written report with conclusions and recommendations.

 

(5) The employer shall, on completion of the investigation into the work place violence,

 

• (a) keep a record of the report from the competent person;

 

• (b) provide the work place committee or the health and safety representative, as the case may be, with the report of the competent person, providing information whose disclosure is not prohibited by law and that would not reveal the identity of persons involved without their consent; and

 

• (c) adapt or implement, as the case may be, controls referred to in subsection 20.6(1) to prevent a recurrence of the work place violence.

 

[Underlining added]

 

Background

 

• [6] The appellant is incorporated pursuant to the Canada Post Corporation Act, RSC 1985, c C-10, to, among other things, operate a national postal service. Mr. Brad King, one of the respondents, is a letter carrier employed by Canada Post at the Letter Carrier Depot #1 located at 6135 Almon St., Halifax, Nova Scotia. Mr. King is represented by the Canadian Union of Postal Workers (CUPW), who is a national union certifiedto bargain on behalf of letter carriers employed by Canada Post. The CUPW represents Mr. King in the present proceedings.

 

• [7] I will provide a brief chronology of the events that eventually led to the appointment of Mr. Gregory Stienke by the employer, to act as “competent person” under subsection 20.9(3) and (4) of the Regulations.

 

• [8] On February 18, 2016, Mr. King submitted a written complaint to Graham MacKenzie, Canada Post Human Resources Manager, which raised allegations of work place violence. The allegations concerned a number of Canada Post management personnel, but were particularly focused on the actions of then Local Depot #1 Superintendent, Mr. Thane Smith. In his complaint, Mr. King refers to numerous instances of bullying, harassment and humiliation by Mr. Smith and other management representatives over a certain period of time, and refers to co‑workers who witnessed such incidents.

 

• [9] Canada Post’s Workplace Violence Prevention and Protection Policy (Policy) contemplates that an employee’s team leader will take initial steps to assess the situation and try to resolve the complaint informally and expeditiously. Mr. King’s team leader at the material times was Ms. Kerry Faye.

 

• [10] On February 25, 2016, Mr. King and his union representative, Ms. Nadine Kays, met with Ms. Faye and Mr. Graham Mackenzie to discuss Mr. King’s situation with a view to him returning to work after he had left due to upsetting confrontations with Mr. Smith on February 10, 2016. During that meeting, Ms. Kays asked what Canada Post would do if Mr. King was to commit suicide as a result of Mr. Smith’s conduct. The meeting had started at 8:00 a.m. and broke up at approximately 9:30 a.m. Mr. King then went home.

 

• [11] Later that morning, Ms. Kays had a telephone conversation with Mr. Mike Kelly, Canada Post’s Manager of Health and Safety for the Atlantic Region, and Ms. Faye regarding a meeting to address Mr. King’s work place violence complaint.

 

• [12] In the aftermath of the 8:00 a.m. meeting, the employer convened what the parties have referred to as a CIRT (Critical Incident Response Team) meeting to address Ms. Kays’ question about suicide. After that meeting, Ms. Faye attempted to reach Mr. King on his home telephone number, but was unable to reach him. It appears that no attempt was made to try to reach Mr. King on his cell phone, or through Ms. Kays, his spokesperson and requested point of contact regarding his complaint. Ms. Faye then placed a call to the Halifax Regional Police, which conducted a wellness check at Mr. King’s residence early that afternoon. The police found Mr. King to be fine and Mr. King described that visit to be extremely distressing for him and his family.

 

• [13] Counsel for the respondents noted the discrepancies when reading the CIRT report and the police records of what was reported to the police as having been said during the meeting. In my view, nothing turns on that question in the present appeal. I refer to the “wellness check incident” only to better understand Mr. King’s state of mind as the chronology of events unfolded. It is not within the scope of the present appeal to make any finding on Ms. Faye’s intentions by acting as she did, as urged by the respondents.

 

• [14] In the days following, Ms. Faye proceeded to conduct the investigation into Mr. King’s work place complaint. Mr. King and Ms. Kays refused to participate as a result of Ms. Faye’s call to the police, which they considered to be an act of intimidation that was now part of the complaint. Ms. Kays reiterated her request to have the matters—the original complaint and the wellness check incident—investigated by an objective “third party”. Ms. Faye carried on with her investigation without the participation of Mr. King and found the allegation of psychological violence to be unfounded, as explained in her written report issued on or about April 7, 2016. Mr. King and Ms. Kays then formally requested a third party investigation, as they considered that Ms. Faye’s investigation was flawed and biased, as Ms. Kays wrote to the employer in her letter dated April 15, 2016.

 

• [15] In March and April of 2016, Ms. Kays had had several conversations with Mr. Kelly, concerning Mr. King’s options under the Policy. During those conversations, Mr. Kelly advised that Mr. King had the right to request a further investigation into his complaint following Ms. Faye’s “first-level investigation”.The concept of having a “second level” investigation was mentioned in the course of those discussions.The Policy contemplates the appointment of a "competent investigator" by the employer and describes the role of the “competent investigator” in that “second-level” process. I note that no direct reference is made to the requirements of subsection 20.9(1) of the Regulations in the Policy, except perhaps very generally under the section “Regulatory Impacts”, where the title of the Code and Regulations is listed. Nothing in the Policy mentions the need for the parties to accept the “competent investigator” as being impartial.

 

• [16] Mr. King’s request for a second-level investigation was referred to Mr. David Gylywoychuk, Director of Occupational Health and Safety, Field Operations (West), who had responsibility for the appointment of “competent investigators” under the Policy. It is Canada Post’s practice to appoint persons from a list called the “Competent Investigator List” to undertake these second-level investigations. The “Competent Investigator List” will hereinafter be referred to as “the list”. The list was developed by the appellant to facilitate the appointment of “competent investigators” under the Policy by listing those individuals employed by Canada Post who are understood to possess the qualifications, training and experience required by Article 2.1 of the Policy to conduct impartial second-level investigations. The appellant has been using the list has since the Policy was formally adopted on October 25, 2013, and is regularly updated as new individuals are added or removed.

 

• [17] The employer appointed Mr. Gregory Stienke to conduct the second-level investigation. Mr. Stienke is a health and safety manager for the appellant in the Mississauga, Ontario. Mr. Stienke had been listed on the list since 2014, and had been a member of the original “workplace violence prevention subject-matter expert team” assembled by the appellant's Health and Safety division, in conjunction with the development and rollout of the Policy in 2013. That team consisted of a small group of managers within the Health and Safety division of Canada Post who were tasked with acquiring increased knowledge, training and experience in respect of the requirements of section 20.9 of the Regulations and the Policy, so that in turn they could provide coaching and assistance to local operations personnel when administering the Policy.

 

• [18] Mr. Stienke first attempted to contact Mr. King on or about June 14, 2016. This attempt was unsuccessful, as Mr. King refused to speak with Mr. Stienke at that time. Ms. Kays later called Mr. Stienke on Mr. King's behalf. During that call, Mr. Stienke introduced himself and described some of his qualifications. As reflected in Mr. Stienke’s notes, Ms. Kays requested that contacts would be through her, as Mr. King “had no trust in management”.

 

• [19] On or about June 15, 2016, Mr. Stienke contacted local management at Local Depot #1

in order to book a room for Mr. King’s interview and to have both Mr. King and Ms. Kays released from their respective delivery routes. Mr. Stienke had a phone conversation with Ms. Faye, who was still the acting manager responsible for Local Depot #1. At the time of this call, Mr. Stienke was not aware of the events of February 25, 2016, or that Ms. Faye had acted as the “first-level” investigator. Following their call, Ms. Faye forwarded Mr. Stienke her first-level investigation report and her investigation notes.

 

• [20] Mr. Stienke ultimately attended in Halifax on June 22, 2016, for conducting the investigation. Mr. King and Ms. Kays raised concerns in respect of Mr. Stienke's contact with Ms. Faye. Mr. Stienke informed them that his call to Ms. Faye was merely to facilitate the release of Mr. King and Ms. Kays from their route, and that he had not been aware of Ms. Faye's prior involvement with the complaint at the time. As well, an issue arose in respect of time off for Mr. King and Ms. Kays to prepare for the interview. As Mr. Stienke was unable to resolve the issue to Mr. King and Ms. Kays’ satisfaction, Mr. Gylywoychuk, Mr. Stienke’s manager, eventually resolved this issue.

 

• [21] Prior to the commencement of Mr. Stienke’s investigation on June 22, 2016, there were issues as to Ms. Kays’ role in the investigation; Mr. King wanted Ms. Kays to speak on his behalf. However, Mr. Stienke wanted to hear the facts directly from Mr. King. Eventually, the matter was resolved after Mr. Stienke spoke with Mr. Gylywoychuk. However, prior to the interview commencing and after a brief caucus, Mr. King and Ms. Kays expressed concerns regarding Mr. Stienke’s competence and told him that he had breached their trust because he had contacted Ms. Faye, whom they considered biased and partial, on two separate occasions. Mr. King and Ms. Kays presented Mr. Stienke a handwritten note setting out their concerns stating that they would proceed with the investigation with “extreme caution”. At no time did Mr. Stienke ask Mr. King if he considered him to be impartial, nor did Mr. King or Ms. Kays expressly state that they did not consider Mr. Stienke to be impartial.

 

• [22] At the outset of the interview, Mr. Stienke presented Mr. King and Ms. Kays with a copy of his qualifications letter and reviewed its content with them. The qualifications letter sets out the definition of a “competent person” from paragraph 20.9 of the Regulations. The following excerpt of the document is of particular relevance to the issue of the present appeal:

 

Is impartial and is seen by the parties to be impartial

 

My impartiality is established by the following:

 

• ” I do not know the parties involved;

• ” I am not in a position where I provide support to the parties involved (i.e. they are not my direct clients).

• ” No vested interest in outcome of investigation.

 

• [23] Mr. Stienke had already checked the boxes next to each of the three indicators of impartiality prior to his introduction. Mr. Stienke interviewed Mr. King on June 22 and 24, 2016. During the course of the interview, Mr. King and Ms. Kays identified at least six co-workers as witnesses in connection with the alleged work place violence. Mr. Stienke undertook to interview the witnesses in the course of his investigation. He interviewed a number of the appellant’s managers in June and returned to Halifax to interview Mr. Smith on July 19, 2016. Mr. Stienke changed his mind regarding the interview of the witnesses suggested by Mr. King and Ms. Kays, as he considered it unnecessary to interview them, since he believed what Mr. King had already told him.

 

• [24] Ms. Kays emailed Mr. Stienke on a number of occasions between August and October 2016, inquiring as to the status of his report. Mr. Stienke's responses indicated that his report was being vetted by his manager and general manager, and that he had been asked to make revisions.Ms. Kays raised concerns regarding the appropriateness of that procedure. Mr. Stienke replied that nobody could change his conclusions and recommendations.

 

• [25] Mr. Stienke issued his Competent Investigator's Report and Recommendations (report) on November 14, 2016. The report dismissed the allegation of bullying, concluding that it was Mr. King's perception that Mr. Smith's conduct amounted to work place violence. The report did not address the merits of Mr. King’s contention that Ms. Faye’s call to the police to conduct a wellness check was an act of intimidation. Mr. Stienke considered that incident to fall outside of his mandate, as there had been no “level-one” investigation on it.

 

• [26] Following receipt of the report, the appellant accepted the findings and took steps to implement the recommendations.

 

• [27] Mr. King and Ms. Kays were not satisfied with the outcome of the investigation. They requested “a third level investigation to be conducted by a third party investigator to which all parties agree”, as stated in Ms. Kays’ memorandum under the title “Response to Greg Stienke – 2^nd Level Investigator’s Report and recommendations”. Ms. Mankovitz, General Manager of Health and Safety at Canada Post (as she was then), replied that the appellant, in compliance with the Regulations, does not offer a third party investigation as part of its process.

 

• [28] Mr. King and Ms. Kays then filed a complaint to the Labour Program of Employment and Social Development Canada (ESDC) alleging that the appellant had failed to appoint a “competent person” to conduct the investigation. They also raised issues with respect to the impartiality of the investigation process, and with respect to Mr. Stienke's consultation with managers of the appellant concerning his report. Mr. King and Ms. Kays asserted that Mr. King had never agreed that Mr. Stienke was impartial.

 

• [29] The ministerial delegate was assigned to investigate the complaint. On or about March 30, 2017, the appellant received an Assurance of Voluntary Compliance (AVC) prepared by the ministerial delegate, alleging that the appellant had failed to appoint a competent person to investigate Mr. King’s complaint, in contravention of subsection 20.9(3) of the Regulations. Eventually, on May 29, 2017, she issued the direction that is the subject of this appeal.

 

• [30] As I mentioned above, the appellant had asked for a stay of the direction being appealed, which I denied. As a result of the stay application being denied, I understand that the employer eventually complied with the direction. The employer sought to introduce in evidence a report prepared by a “competent person” appointed in compliance with the direction. I sustained the respondents’ objection to the introduction of that report. In my view, the measures taken by the employer in compliance with a direction fall outside the scope of the present appeal. To be fair to the respondents, accepting the report would have opened up debate on the context of that report, including the appointment of the investigator, the investigation and conclusions reached, with the effect of unduly prolonging the already lengthy present proceedings. The report likely addressed the merits of Mr. King’s complaint, a matter that I considered not to fall within the scope of the appeal, as I stated repeatedly during the course of these proceedings.

 

• [31] The evidence at the hearing also established that Mr. Stienke’s draft report had been reviewed by a number of persons prior to its release. Ms. Mankovitz explained that such a practice was common and was for quality control purposes. Although it is not mentioned specifically in the Policy, it is common to all investigations and the goal is to ensure the coherence of the report, the clarity of the findings, and the consistency between the findings and the recommendations to make sure that “the recommendations make sense”.

 

• [32] In Ms. Mankovitz’s view, the role of the competent person is not to determine “who is right or wrong”, whether something “is or is not bullying”, or whether disciplinary measures should be taken. Rather, the task of an investigator is to assist in finding a solution to the situation complained of and to restore the work place into a workable environment.

 

• [33] Mr. Stienke testified that he initiated contact with two members of the work place violence subject matter expert team – Mr. Vaden Hillier and Mr. Adrean Wolvers – in or around late August or early September of 2016, seeking feedback on the organization, style and language of his draft report. Both individuals are also members of the work place violence subject-matter expert team, and have experience in the drafting of a competent person’s written report.

 

• [34] Mr. Stienke shared his later draft reports with both Ms. Mankovitz and Mr. Gylywoychuk, who also provided feedback as to the internal coherence and overall quality of the draft. It should be mentioned that those consultations led to Mr. Stienke making more than editorial changes to the narrative of his report, and to his conclusions and recommendations. It should also be mentioned that Mr. King and Ms. Kays were not informed of such a practice at the outset of the investigation process.

 

Issue

 

• [35] The issue raised by the present appeal is whether the appellant, faced with allegations of violence in the work place by Mr. King, failed to appoint a “competent person” as required by subsection 20.9(3) of the Regulations. More specifically, the direction refers to the requirement set out in paragraph 20.9(1)(a) of the Regulations as to whether the person appointed was “impartial and seen by the parties to be impartial”, within the meaning of that paragraph.

 

Submissions of the Parties

 

A) Appellant’s Submissions

 

• [36] Counsel for the appellant first provides an overview of the statutory framework relating to the prevention of work place violence in Part XX of the Regulations. The appointment of a competent person is at the heart of the present appeal. The appellant submits that the competent person has no adjudicative role, but must present a report setting out findings, conclusions and recommendations to the appellant.

 

• [37] The appellant points out that the Regulations do not provide any concrete obligation on the appellant in respect of the competent person’s conclusions. Rather, the purpose of the investigation and recommendations is to assist the appellant in meeting its own obligations under Part XX. The appellant relies on the decision in Natural Resources Canada v. Professional Institute of Canada, 2018 OHSTC 1 (Natural Resources Canada) to state that the competent person’s role is more focused on identifying risks and developing appropriate recommendations to prevent future occurrences of work place violence. Consequently, the appellant is not required under the Regulations to accept or adopt any of the recommendations put forward by the competent person, nor is the competent person provided with the authority to enforce them. As a result, the investigation of the competent person is not directly linked with any particular outcome or remedy, but is simply one part of the preventative obligations imposed on the appellant under Part XX. It is important to keep in mind such specific statutory context when proceeding to analyze questions of impartiality and investigation process.

 

• [38] Counsel for the appellant submits that the contravention identified by the ministerial delegate is narrowly focused on the requirements of paragraph 20.9(1)(a), namely a failure to appoint a person “who is impartial and seen to be impartial by the parties involved”. The appellant refers to Maritime Employers Association v. Longshoremen’s Union (CUPE, local 375), 2016 OHSTC 14 (Maritime Employers Association) and to Committee for Justice and Liberty v. Canada (National Energy Board) (1976), [1978] 1 SCR 369, cases in which the concept of impartiality and reasonable apprehension of bias are addressed. The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through could have a reasonable apprehension of bias in the present circumstances.

 

• [39] Mr. Stienke’s impartiality is challenged under two aspects: (1) being a Canada Post employee, he cannot be impartial (institutional bias); (2) issues arising as a result of the conduct of his investigation.

 

• [40] The appellant submits that a well-informed person, viewing the matter realistically and practically, would not have a reasonable apprehension of bias in a substantial number of cases where the appointed investigator is also a Canada Post employee.The competent person is not tasked with investigating the appellant’s conduct or compliance with the Code requirements per se, such that the interests of the appellant and the competent person are not diametrically opposed.

 

• [41] Second, a well-informed person would also appreciate that the mere fact that an appointed investigator owes obligations as an employee to the appellant does not automatically mean that the investigator owes those same obligations to any of the individual parties to the complaint of work place violence. Absent additional evidence indicating some form of a direct relationship between the individual parties and the investigator resulting from the latter’s status as a Canada Post employee, the mere fact of employment, without more, does not inherently raise any concerns that the investigator will be biased in favour of one of the parties.

 

• [42] Furthermore, the primary consideration in the selection of a competent person from the list is related to geography, which minimizes the risk of there being a connection with any of the parties involved in the complaint. The evidence of Mr. Gylywoychuk also indicates that, where objections have been made to an employee’s inclusion on the list due to some personal circumstances, the appellant has in those cases removed the person from future consideration.

 

• [43] The appellant submits that nothing in the Regulations prevents an employer from appointing one of its employees to act as a competent person. In fact, this possibility is expressly recognized in section 1.1 of ESDC’s Interpretations, Policies and Guidelines (IPG) entitled “Violence prevention in the work place - 943-1-IPG-081”: “The [competent person] can be an employee of the work place or an outside contractor”. This same position is reflected in the revised IPG of August 26, 2016. The use of its own employees ensures a greater level of familiarity with the work place by the competent person and therefore addresses the realities of cost and efficiency in the investigation process.

 

• [44] As to Mr. Stienke’s conduct of the investigation, the appellant submits that the fact that Mr. Stienke did not interview Mr. King’s proposed witnesses has nothing to do with Mr. Stienke’s impartiality, and is thus not within the jurisdiction of the appeals officer. The concepts of impartiality and procedural fairness are of a different nature.A ministerial delegate has no jurisdiction under the Code to investigate and issue directions concerning the conduct of a competent person’s investigation, and such arguments should not be entertained in the present appeal. Even if it were found that a ministerial delegate could consider procedural issues arising during the conduct of a competent person’s investigation, the appellant submits that this simply did not form the basis for the direction in this case, such that it is not now an issue in this appeal. The contravention identified by the ministerial delegate relates only to the appellant’s obligation to appoint a competent person, not to the investigation itself. Those are new issues that fall outside of the appeals officer’s powers set out in subsection 146.1(1) of the Code.

 

• [45] Furthermore, even if the conduct of Mr. Stienke’s investigation may be considered by the appeals officer, the standards of procedural fairness would not apply to the conduct of an investigation by a competent person. Unlike an investigator’s impartiality, which is expressly required by paragraph 20.9(1)(a), nothing in the Regulations provides for any type of procedural standards to be followed by the competent person in the conduct of their investigation, a point also made by the appeals officer in Natural Resources Canada.There is no obligation placed on the appellant to ensure that the investigation conducted by a competent person is done in a procedurally fair manner and without an express obligation in the Regulations, matters arising solely from the manner in which the competent person’s investigation is conducted cannot be the subject of a direction. In any event,Mr. Stienke’s evidence was that he chose not to interview Mr. King’s witnesses because he accepted that Mr. King’s description of events was accurate and largely uncontested. That is not an indication of a biased investigator.

 

• [46] Finally, to the extent any standards of procedural fairness could be implied into the language of section 20.9 of the Regulations, the appellant contends that they should be no more onerous than that which would be imposed by the common law. However, the common law would not impose procedural standards on a competent person carrying out an investigation pursuant to subsections 20.9(3) and (4) of the Regulations. Obligations of procedural fairness are reserved for public bodies determining rights and obligations through the exercise of statutory powers, which a competent person is not, as it is preforming purely private functions (see:Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26). Furthermore, a competent person is not tasked with determining a person’s “rights and obligations” or holding a “hearing”, such that the requirement of subsection 2(e) of the Canadian Bill of Rights, SC 1960, c 44, would have no application.

 

• [47] Even if a common law standard of procedural fairness could be implied into the language of section 20.9 of the Regulations, it is submitted by the appellant that Mr. Stienke met those standards (see: Slattery v. Canada (Human Rights Commission) [1996] FCJ No. 385 (FCA); Sketchley v. Canada (Attorney General), 2005 FCA 404). The competent person’s decision not to interview all witnesses proposed by Mr. King is not necessarily a sign of bias, as an investigator is not required to pursue every last conceivable angle of the complaint (see: Bergeron v. Canada (Attorney General), 2015 FCA 160;Tessier v. Nova Scotia (Human Rights Commission), 2014 NSSC 65).

 

• [48] The appellant further submits that Mr. Stienke met the requisite standard of thoroughness in his investigation. During the course of his investigation, he met with and interviewed Mr. King and four other persons in June and July of 2016. Mr. Stienke’s evidence was that, following his interview with Mr. Smith on July 19, 2016, he determined that he did not need to interview Mr. King’s proposed witnesses, as Mr. Stienke had accepted as accurate the events described by Mr. King. Mr. Stienke assessed the evidence that he received from Mr. King and the other witnesses, along with the documents and other information he had access to, and determined that it was sufficient for him to be able to offer conclusions and recommendations in his written report. That assessment of the evidence is entitled to deference and it cannot be said that Mr. King was deprived of any right or remedy as a result of any alleged procedural defect.

 

• [49] Regarding the issue of the review of Mr. Stienke’s draft report, which the respondents consider to be raising a reasonable apprehension of bias, the appellant stresses that the review was in accordance with the process within Canada Post’s Health and Safety division, i.e. conducting an informal review of the competent person’s draft report by members of the Health and Safety division as a quality-control measure. The only persons who were given access to the draft reports were the key members of the work place violence subject matter expert team, none of whom had a direct relationship with the parties to the complaint. It is an acceptable practice which is designed to improve the overall quality and coherence of the report. It is not concerned with the competent person’s findings of fact or conclusions. It has been held that a reasonable apprehension of bias does not necessarily arise simply because a decision-maker discusses details of a case or consults with others in the process of reaching their decision (see: I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., [1990] 1 SCR 282 (Consolidated Bathurst);Bovbel v. Canada (Minister of Employment & Immigration), [1994] FCJ No. 190 (Bovbel).

 

• [50] Regarding whether Mr. Stienke was seen by the parties to be impartial, the appellant submits that Mr. King did not view Mr. Stienke as lacking impartiality at the time of his appointment or during the course of the investigation.Rather, the appellant submits that the purported perception of bias arose only after Mr. King received Mr. Stienke’s written report on November 14, 2016.

 

• [51] Mr. King accepts that he was aware, by at least his initial call with Mr. Stienke on or about June 14, 2016, that Mr. Stienke was employed by the appellant. Yet neither Mr. King nor Ms. Kays advised Mr. Stienke during that initial call on or about June 14, 2016, that they did not consider him to be impartial or that they objected to him investigating the complaint. Mr. Steinke asked Mr. King and Ms. Kays whether they wanted to proceed with the investigation, and they confirmed that they did. Again, neither Mr. King nor Ms. Kays advised Mr. Stienke during this call that they no longer saw him as impartial or incapable of conducting an impartial investigation. Neither objected to his status as a Canada Post employee during this call. The actions of Mr. King and Ms. Kays are not consistent with their holding the perception that Mr. Stienke was an unacceptable choice of investigator due to his status as a Canada Post employee. Mr. King’s objection was unreasonable and the appellant acted in line with the IPG in effect at that time, which stated that reasonable objections must be addressed.

 

• [52] The appellant also submits that no weight should be given to the letter of April 15, 2016, which Mr. King and Ms. Kays represented to the ministerial delegate as having been sent to the appellant. The references to “third party investigator” were clearly used to refer to the appointment of a non-local investigator, in contrast with the first-level investigation of Ms. Faye as a member of local management investigating other members of local management.

 

• [53] During the meeting of June 22, 2016, after Mr. Stienke described his qualifications and spoke to his impartiality, neither Mr. King nor Ms. Kays advised Mr. Stienke that they did not believe those representations to be accurate, or otherwise advise Mr. Stienke that they did not believe that he met the requirement of impartiality. The concerns expressed by Mr. King and Ms. Kays were related to Ms. Faye’s first level investigation and Mr. Stienke’s contacts with her. The interview did in fact proceed, with both Mr. King and Ms. Kays fully participating. The June 22, 2016, handwritten letter by Mr. King and Ms. Kays confirms their willingness to continue with their participation in the investigation, albeit with “extreme caution”.

 

• [54] The letter sent on June 22, 2016, is entirely inconsistent with the testimony of Mr. King and Ms. Kays to the effect that they believed that they had to participate in the second-level investigation in order to then have access to a further investigation conducted by an external party. What difference would raising such concerns with Mr. Stienke make if Mr. King truly believed that that Mr. Stienke would be biased regardless? In fact, neither Mr. King nor Ms. Kays ever expressed to Mr. Stienke, or anyone else at Canada Post, that they believed Mr. King had to proceed with Mr. Stienke’s purportedly biased investigation in order to access a further investigation by an external party. The appellant submits that there was never any confusion Mr. King and Ms. Kays’s minds as to the process, and they understood that Mr. Stienke was, in fact, conducting the competent person investigation envisaged in the Regulations.

 

• [55] On September 26, 2016, Mr. King’s union representative again reached out to Mr. Stienke concerning the status of his investigation, and was advised at that time by Mr. Stienke that his draft report was sent for review and that revisions were being made to the report’s formatting. There is no evidence that either Mr. King or Ms. Kays raised any objections to Mr. Stienke’s impartiality following this exchange or otherwise expressed that they no longer considered him to be impartial.

 

• [56] The appellant stresses that the competent person must be seen as impartial by the parties at all times that they are acting as the “competent person”. However, Mr. Stienke was no longer acting as a “competent person” as soon as he completed the mandate imposed by subsection 20.9(4) of the Regulations – i.e. upon completing his investigation and providing a written report with conclusions and recommendations to the appellant. The obligation to “be seen by the parties as impartial” is time-limited.

 

• [57] The appellant submits that the respondents should be precluded from objecting to Mr. Stienke’s status as impartial (whether objective or subjective), due to Mr. King’s failure to raise such issues clearly and unequivocally with the appellant at the first opportunity within a reasonable time after he became aware of the circumstances giving rise to these purported concerns, and should be held to have waived any apprehension of bias that may have arisen (Robinson v. Comité Garderie Plein Soleil [1992] NWTJ No. 153;Bassila c. Canada, 2003 FCA 276); Maritime Employers Association; Natural Resources Canada). The appellant therefore submits that, even if Mr. King harboured a perception of bias during Mr. Stienke’s investigation, which the appellant denies, he should be precluded from relying on such by reason of his failure to act promptly and unequivocally in alerting the appellant of this state of mind.

 

• [58] The appellant further submits that the ministerial delegate did not find a contravention by the appellant of subsection 20.9(3) of the Regulations as a result of the appellant failing to appoint an investigator who met the requirements of paragraphs 20.9(1)(b) or (c). As such, the appellant takes the position that the respondents cannot now attack Mr. Stienke’s status as a competent person on the basis that he did not possess those qualities. There is no indication that either Mr. King or Ms. Kays raised any objection, at any point, as to the sufficiency of Mr. Stienke’s knowledge, training, or experience.An appeals officer does not possess the jurisdiction to issue new directions based upon contraventions that were not identified by the ministerial delegate.

 

• [59] In the alternative, the appellant argues that there is no valid argument suggesting that Mr. Stienke did not meet the criteria imposed by paragraphs 20.9(1)(b) and (c) of the Regulations.Neither paragraph 20.9(1)(b) or (c) requires a specific threshold of knowledge, training and experience in “issues relating to work place violence,” or as to knowledge of the relevant legislation. It is submitted that only a minimal standard should be imposed in that absence of clear direction from the language of subsection 20.9(1).

 

• [60] Mr. Stienke testified to his training and knowledge acquired through his participation in the appellant’s work place violence subject matter expert team, his experience coaching operations personnel in Ontario in handling and investigating work place violence complaints, and his conduct of dozens of first-level investigations. He further testified that he is aware of the Code requirements as it pertains to work place violence, and has on many occasions be called upon to interpret its provisions in the course of his work.

 

• [61] The appellant asks that the direction be rescinded.

 

Respondents’ Submissions

 

• [62] The respondents submit that the ministerial delegate correctly determined that the person appointed by the appellant was not a “competent person” within the meaning of subsection 20.9(3) of the Regulations. Furthermore, the appeals officer should exercise discretion under subsections 145 and 146(1) of the Code to vary the direction and find that the person appointed by the appellant did not have the knowledge, training and experience required under paragraph 20.9(1)(b) and failed to provide a competent person report as required by subsection 20.9(4).

 

• [63] More precisely, the evidence establishes the following facts: (i) the person appointed, Mr. Stienke, was not impartial and not seen by the parties to be impartial; (ii) the conduct of the person appointed disclosed a lack of impartiality during the investigation and in the course of preparing the investigation report; (iii) and the content of the report disclosed lack of impartiality and a lack of knowledge, training and experience required under 20.9(2)(b).

 

• [64] The respondents point out that the appeal is a de novo proceeding and the appeals officer is vested with all the powers of the minister under subsection 145.1(2), which would authorize him/her to vary a direction to include contraventions that should have been included by the ministerial delegate in the direction under appeal (see: Martin v. Canada (Attorney General), 2005 FCA 156; Canadian Union of Postal Workers and Canada Post Corporation, 2013 OHSTC 23; Natural Resources Canada).

 

• [65] The respondents rely in part on deficiencies in the investigation conducted by Mr. Stienke and deficiencies in the investigation report in support of the conclusion that Mr. Stienke failed to adhere to the impartiality requirement in subsection 20.9(3). The appeals officer has jurisdiction to review the impartiality of a competent person both before and after the commencement of the investigation (Natural Resources Canada). The competence requirements are intended to ensure that a neutral and thorough investigation takes place. The Regulations should be interpreted and applied in a manner consistent with the furtherance of that purpose.

 

• [66] The respondents argue that the concept of impartiality implies procedural standards for the investigator and imports the requirement of neutrality and thoroughness.

 

• [67] The respondents submit that, since the obligation to appoint an impartial person falls solely on the appellant, the onus of establishing the impartiality of the competent person it selects rests on the appellant. The parties must consider the person to be impartial “without limitation or exception”, failing which the person simply cannot be appointed (Maritime Employers Association). It would be appropriate for the proposed investigator to inform the parties that they could refuse to agree with the appointment based on perceived lack of impartiality. The Labour Program’s IPG issued on August 26, 2016, stating that all parties must agree that the person is impartial is persuasive authority in respect of the proper interpretation of subsection 20.9(3) of the Regulations.

 

• [68] The respondents stress that the evidence taken as a whole supports the conclusion that Mr. Stienke was aware of concerns pertaining to his impartiality. Yet, he took no steps to advise Mr. King of his right to object to his appointment. Mr. King and Ms. Kays have consistently stated that the complaint should be investigated by a “third party investigator”, as set out in documents written in February 2016, April 2016 and June 2016. They were clearly and openly suspicious of Mr. Stienke, had concerns regarding his impartiality, and informed him that they would proceed with extreme caution. This should be interpreted as an expression of reservation and does not meet the standard for an agreement contemplated in Maritime Employees Association. The lack of trust was well understood by Mr. Stienke, as reflected in his draft investigation reports.

• [69] In reference to the document Mr. Stienke presented to Mr. King and Ms. Kays on June 22, 2016, the respondents points out that, while it sets out assertions in support of impartiality, it is silent on the requirement that the person be seen to be impartial. In the final analysis, the respondents conclude that the evidence does not establish that Mr. King and Ms. Kays agreed that Mr. Stienke was impartial.

 

• [70] In response to the argument of waiver and abuse of process raised by the appellant, the respondents submit that it is the responsibility of the appellant to appoint an individual who satisfies the conditions set out in subsection 20.9(3) of the Regulations. Where the work place violence complainant has expressed or implied concerns in respect of the impartiality of the proposed person and the employer fails to advise the complainant of the consequences of proceeding and fails to obtain a clear agreement that the proposed competent person is seen as impartial, the appellant cannot assert a waiver of rights under subsection 20.9(3) of the Regulations. There is clearly no voluntary abandonment or relinquishment of a right in the present case (Marchischuk v. Dominion Industrial Supplies Ltd., [1991] 2 SCR 61.

 

• [71] The respondents further submit that there were serious deficiencies in the investigation and in the report, which establish that Mr. Stienke lacked the competences required under paragraphs 20.9(1)(a) and (b) of the Regulations. He failed to interview Mr. King’s proposed witnesses. Those persons could have shed some light on the situations of bullying alleged by Mr. King, and countered Mr. Stienke’s conclusion that the alleged bullying was unintentional and merely a subjective perception by Mr. King. Also, not interviewing the suggested witnesses was contrary to the appellant’s own work place violence policies and practices and shows arbitrariness and a lack of neutrality by Mr. Stienke.

 

• [72] The respondents point out that Mr. Stienke’s investigation ignored the allegation that the appellant’s call to the police regarding Mr. King as a suicide risk was improperly motivated. The respondents noted the discrepancies when reading the CIRT report and the police records of what was reported to the police as having been said during the meeting. After reviewing the details of that incident in the evidence, the respondent concludes that the call was clearly an act of intimidation and the investigation report is seriously deficient because it fails to outline and analyze all those facts, and gives rise to an inference of partiality.

 

• [73] The respondents further argue that Mr. Stienke improperly modified conclusions and recommendations in his draft report after consulting other appellant representatives. The respondents highlight various aspects of the report that were modified because of discussions with others and the fact that those changes were not merely cosmetic or editorial. Neither the Policy nor the Regulations expressly contemplate that anybody other than the competent person would have input into the report. The confidentiality restrictions contained in the appellant’s Policy confirm that nobody other than the investigator is to have access to the facts related to the alleged work place violence incident except as necessary to implement the recommendations. The final report was informed by significant input by others who were improperly given access to confidential information. Disclosure of confidential information could have the effect of undermining the confidence in the process and is in violation of the Policy.

 

• [74] The extended nature of Mr. Stienke’s consultation process gives rise to a reasonable apprehension of bias. The Consolidated Bathurst and Bovbel decisions cited by the appellant should be distinguished: in those cases, the hearing panel determined the facts and voluntarily initiated a discussion of law and policy with other Board members and/or legal counsel with a view to furthering consistency in the decision making process. In the present case, the consultation process affected the facts and conclusions to be included in the report, and the process was mandatory (IBEW, Local 894 v. Ellis-Don Ltd. [2001] 1 SCR 221).

 

• [75] The respondents further submit that the evidence in this proceeding supports the conclusion that Mr. Stienke did not possess the knowledge, experience or training of a competent person as established by the errors in the investigation process and deficiencies with respect to the report preparation process and its contents. Under section 145 and subsection 146(1), an appeals officer has the jurisdiction to determine whether an appellant's assessment of a competent person's knowledge, experience and training was correct. Since the appeal is a de novo process, there is no temporal restrictions that constrain the jurisdiction of the ministerial delegate or the appeals officer to consider evidence of the competent person’s conduct after the appointment to ascertain whether those qualifications are met (Natural Resources Canada). The respondents conclude that Mr. Stienke’s conduct during the investigation, as well as in respect of the report preparation process, disclosed insufficient experience, knowledge and training to satisfy the requirements of paragraph 20.9(1)(b).

 

• [76] The respondents ask that the appeal be dismissed and that the direction be varied to reflect violations of paragraphs 20.9(1)(a) and (b), and subsections 20.9(3) and (4) of the Regulations.

 

Appellant’s Reply Submissions

 

• [77] In reply, the appellant reiterated various aspects of its original submissions. In addition, the appellant disagreed that the Martin decision was authority for the appeals officer to vary the direction in the manner sought by the respondents. The appellant cites Rudavsky v. Public Works and Government Services Canada, 2016 OHSTC 1 (Rudavsky) in support of the proposition that the appeals officer cannot issue new directions that were not considered by the ministerial delegate, or that were considered but for which the ministerial delegate chose not to issue a direction.

 

• [78] The appellant disagrees with the submission that the appellant bears the burden of proving that the parties saw Mr. Stienke as being impartial. Such an assertion misconstrues the nature of the appeal process, which is de novo, and which has been interpreted to mean that neither party on an appeal under subsection 146(1) bears the onus of proof (Canadian Freightways Ltd v. Canada (Attorney General), 2003 FCT 391. On the contrary, the evidence shows that Mr. King had many opportunities to challenge Mr. Stienke’s lack of impartiality if he perceived it as such. The appellant also alleges that “trust issues” cannot be construed as objections to Mr. Stienke’s impartiality.

 

• [79] The appellant submits that Mr. Stienke’s decision not to interview the witnesses suggested by Mr. King was justifiable and does not reflect any form of bias. It reflects the fact that he was able to ascertain the necessary facts from the witnesses he interviewed, including Mr. King and Ms. Kays. Likewise, the fact that Mr. Stienke did not consider the wellness check incident is justifiable, as it was not part of the complaint he was investigating.

 

Analysis

 

• [80] The present appeal raises the issue of whether the employer has appointed a “competent person”, as defined in the Regulations, to investigate allegations of work place violence made by Mr. King set out in his February 18, 2016, statement of complaint to the employer. That question, which may seem rather simple at first glance, raises a number of sub-issues of facts and law, going to the interpretation of section 20.9 of the Regulations, and more specifically, calls for a proper understanding of the process set out in subsections 20.9(3) to (5) and the scope of review by an appeals officer of that process.

 

• [81] The appeals officer’s authority is set out in subsection 146.1(1) of the Code as follows:

 

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).

 

• [82] I will start by stating that there is no question that the allegations made by Mr. King are related to work place violence and engage the process contemplated in subsections 20.9(2) and (3) of the Regulations. The kind of conduct that is alleged to have taken place speaks of bullying, intimidation, harassment, public humiliation and the like, and clearly relates to situations of alleged violence, as that term is defined at section 20.2 of the Regulations and illustrated further in subsection 20.3(b) of the Regulations. Neither party dispute that assertion.

• [83] Accordingly, the appellant, as mandated by subsection 20.9(2), attempted to resolve the matter with Mr. King. This is what the employer purported to do by asking Ms. Faye, in her role as a team leader and representative of local management, to inquire into the allegations of the complaint. As the evidence established, that local internal process somewhat derailed as a result of Mr. King’s decision not to participate in it, in light of his concerns regarding Ms. Faye’s call to the police to conduct a wellness check on Mr. King. Those actions were seen by Mr. King to be inappropriately motivated and to constitute a form of intimidation by management. It is understood that I refer to the “wellness check incident” only to better understand the following course of events and Mr. King’s state of mind. As I have already stated, it is not within the scope of the present appeal to make any finding on Ms. Faye’s intentions by acting as she did, as urged by the respondents.

 

• [84] On April 7, 2016, Ms. Faye informed Mr. King that she found his complaint of violence to be unfounded. Mr. King was not satisfied with Ms. Faye’s conclusions regarding his allegations of work place violence and it is trite to state that the matter was not resolved, as contemplated by subsection 20.9(3).

 

• [85] That being the case, the employer was under an obligation to appoint a competent person as required by subsection 20.9(3) of the Regulations. There is no dispute that such an obligation arose in the circumstances of the present case. What is at the center of the debate is whether the person appointed by the employer met the requisite conditions set out in the definition of “competent person” at subsection 20.9(1) of the Regulations. The ministerial delegate, whose direction is challenged by the present appeal, found that the person appointed, Mr. Stienke, was “not impartial and seen to be impartial by the parties involved”. She makes no reference to the other qualifications of Mr. Stienke required under paragraphs 20.9(1)(b) or (c), and it is clear from the wording of her direction and her assignment narrative report that her direction is entirely focused on the requirement of impartiality prescribed by paragraph 20.9(1)(a).

 

• [86] Before addressing the parties’ arguments regarding the scope of the appeal and the appeals officer’s power to vary a direction in order to include additional contraventions, I must first determine whether the condition set out at paragraph 20.9(1)(a) of the Regulations has been met. That paragraph is part of a section of the Regulations that prescribes a number of measures and obligations with respect to the prevention of work place violence. Those obligations were described by the Federal Court of Appeal in Attorney General of Canada v. Public Service Alliance of Canada, 2015 FCA 273, as follows:

 

[19] The Regulations prescribe many obligations for the employer with respect to “work place violence”, which is defined as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee” (s. 20.2). The Regulations impose an obligation on the employer to develop a “work place violence prevention policy” setting out, amongst others, the obligation to provide a safe, healthy and violence-free work place and to “dedicate sufficient attention, resources and time to address factors that contribute to work place violence including, but not limited to, bullying, teasing, and abusive and other aggressive behaviour and to prevent and protect against it” (s. 20.3). No such policy was in place at the time the employee filed his complaint. The scheme of Part XX also requires the employer to identify the factors that contribute to work place violence (s. 20.4), to assess the potential for work place violence using these factors (s. 20.5), to develop and implement systematic controls to eliminate or minimize work place violence (s. 20.6), to review periodically the effectiveness of these measures (s. 20.7), and to develop an emergency notification procedure in response to work place violence and to communicate it to employees (s. 20.8).

 

[20] While these various provisions are aimed at prevention, section 20.9 is remedial. It is meant to offer an avenue of redress for employees who have experienced work place violence, with a view to having the situation dealt with appropriately by their employer.

 

• [87] Regarding the role of the “competent person”, the Court states as follows:

 

[31] The Regulations are clearly meant to prevent accidents and injury to health occurring in work places and to protect employees who have been victims of work place violence, whatever form it may take. The appointment of a competent person, that is, a person who is impartial and is seen by both parties to be impartial, is an important safeguard to ensure the fulfillment of that objective. I agree with the Respondent that allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints with a view to preventing further instances of violence.

 

[32] In arriving at this interpretation of the Regulations, I find some comfort in the Guide to Violence Prevention in the Work Place released by Human Resources and Skills Development Canada following the adoption of Part XX of the Regulations (Appeal Book, p. 238). While not binding on the Court, it is nevertheless helpful as it is designed to assist employers in applying the Regulations. It clearly states (at p. 258) that “a formal investigation by a ‘competent person’ must take place if the employer cannot resolve the matter to the satisfaction of the employees involved”.

 

[…]

 

[34] I agree with the application judge that the threshold should be quite low, and that an employer has a duty to appoint a competent person to investigate the complaint if the matter is unresolved, unless it is plain and obvious that the allegations do not relate to work place violence even if accepted as true. The employer has very little discretion in this respect. If the employer chooses to conduct a preliminary review of a complaint (or a so-called fact-finding process), it will therefore have to be within these strict confines and with a view to resolving the matter informally with the complainant. Any full-fledged investigation must be left to a competent person agreed to by the parties and with knowledge, training and experience in these matters.

 

[Underlining added]

 

• [88] The outcome of the competent person investigation is an important part of the employer’s obligations to maintain and review the effectiveness of the controls and prevention measures on an ongoing basis, as required by the Regulations. The competent person’s report, which is to contain conclusions and recommendations further to a “full-fledge” and “formal” investigation of the employee’s complaint, is designed to be instrumental to the employer in meeting that obligation, in addition to providing an avenue of redress to the complainant, as the Court puts it. The importance of the competent person process and its outcome in the overall work place prevention scheme must not be minimized and should be in the forefront when interpreting and applying the language of paragraph 20.9(1)(a).

 

• [89] That provision refers to the requirement of impartiality. It sets out two dimensions under which that concept must be examined: an objective and a subjective one. As the appeals officer pointed out in Natural Resources Canada, the person to be appointed must satisfy both dimensions in order to be appointed. As I stated in Maritime Employers Association, the first dimension may be difficult to establish at the appointment stage since the concept of impartiality is an attitude of mind of the person, involving a capacity to proceed with the investigation with an open mind, with neutrality and in a disinterested way. It implies an inclination to weigh the facts and opinions equally and without favouritism or prejudice towards one of the parties, and without having pre-judged the issue (“Impartiality.”, Merriam-Webster.com, Merriam-Webster, 2018; “Impartiality.”, Merriam-Webster.com/legal, Merriam-Webster Law Dictionary, 2018; and “Impartiality.”, oed.com, The Oxford English Dictionary, 2018). Such disposition of the mind may not be readily ascertainable at the time of appointment. This, in my view, explains why the legislator has added a subjective dimension to ensure the impartiality of the process. I stated as follows in Maritime Employers Association, at paragraphs 54 to 56:

 

[54] The wording of paragraph (a), however, leads us in a completely different direction. It seems to me indisputable that the test of impartiality set out in paragraph (a) evokes a subjective notion of impartiality and relies on the perception of the parties involved. The text is clear and is not open to interpretation, especially when compared to the wording of the requirements for experience, training and knowledge.

[55] The legislator clearly preferred a consensual approach to the issue of impartiality. By including the words and is seen by the parties to be impartial after the word impartial, the legislator clearly requires the parties to agree on whether the person proposed by the employer is impartial. The French version of this same paragraph is equally clear [… est impartial et est considérée comme telle par les parties] and also requires that the parties consider the person to be impartial, without limitation or exception. If an agreement is not reached, the proposed person simply cannot be appointed.

[56] From this it can be inferred that the legislator considered it vital that the parties agree on the impartiality of the person designated to conduct the investigation whose objectives are described in subsection 20.9(3) and et seq. of the Regulations. There is no doubt that the objective sought by the legislator is to ensure the credibility of the recommendations that this person must provide at the end of the investigation and to promote their acceptance by all of the parties involved.

[Underlining added]

• [90] Appeals officers and the Courts have therefore used words such as “acceptance” and “agreed to” in relation to the appointment of the proposed person insofar as that person’s impartiality is concerned. The need for impartiality is such an important feature of the scheme that the acceptance must, in my view, be clear, unequivocal, informed and without reserve in order to attain the objective sought by the legislator. My interpretation of this requirement is supported by reference to the Labour Program’s IPG, Appendix C (Competent Person Report Template), which provides at item 6 details on the “competent person”, including the following sentence: “Complainant accepts selected competent person (Yes – No)” [emphasis added]. IPGs are not binding on the appeals officer, but may provide useful guidance on the interpretation and understanding of the statutory framework under the Code (Attorney General of Canada v. Public Service Alliance of Canada, 2015 FCA 273).

 

• [91] I will therefore first focus to the subjective element of impartiality, which is “to be seen by the parties to be impartial” [emphasis added], which in my view is determinative of the appeal. Has Mr. King expressed clearly and unequivocally that he accepted Mr. Stienke as being impartial?

 

• [92] The respondents argue that the onus is on the employer to establish such acceptance. In my opinion, the question is not on which party rests the onus of proof, as it has been stated in a number of appeal decisions since Canadian Freightways Ltd v. Canada (Attorney General), 2003 FCT 391. Rather, I must be satisfied, on a balance of probabilities after inquiring into the circumstances of the direction and the reasons for it (subsection 146.1(1) of the Code), that the appointment of Mr. Stienke was acceptable to all parties.

 

• [93] The parties in the present case include the persons against whom the complaint is directed, the appellant, and of course Mr. King, the complainant. The acceptance by the appellant is obvious since the appellant appointed Mr. Stienke. The acceptance of the alleged perpetrators has not been raised or discussed at all by the parties to the appeal and is therefore not in question.

• [94] Mr. Stienke holds a management position with Canada Post as manager of occupational health and safety for the Ontario Region. As such, he is a senior representative of the employer in his regular duties. When acting as a “competent investigator”, Mr. Stienke reports to Mr. Gylywoychuk, who in turn reports to Ms. Mankovitz, who ultimately reports to a senior executive of Canada Post. He does not know any of the persons involved in the complaint and has no reporting relationship to any of them. He was part of the subject matter experts team who was tasked with implementing the Policy across the appellant’s organization. His name appeared on the list at the material time, along with the names of over thirty other persons, all employed by the appellant in various managerial roles. The list was prepared by the appellant, after consultation with the work place unions, and is reviewed from time to time. It should be noted that the list has not been subject to an agreement with the CUPW, as it is the case, for example, with the list of arbitrators to act under the collective agreement.

 

• [95] First, the sole fact that Mr. Stienke is an employee of the appellant exercising managerial functions is not, in my opinion, a reason to automatically disqualify him to act as a “competent person”. The respondents have not pressed that point in their argument and as a general statement, I see no basis upon which it could be said that such a person could not be impartial, unless that person entertains some links or some interest with either of the parties. To the extent that a person on the list is acceptable to the parties, I see nothing in the Regulations that would expressly prevent such an appointment. Thus, the question is not whether a person employed by the appellant may be appointed, but rather whether such a person is acceptable to the parties. As I stated in Maritime Employers Association, I am of the view that a complainant’s objection to the appointment of a person employed in a management role for the employer would not be unreasonable per se, particularly when the alleged violence involves a manager of that same employer.

 

• [96] I will simply comment at this point that it is not clear to me that the appointment of an employee, who holds management responsibilities for the employer to act as a “competent person”, is entirely supportive of the objective underlying the scheme set out in section 20.9. In my view, the operating premise of the drafters of the Regulations is that the person appointed by the employer would act independently from the employer and without ties to it. While it may be a lesser concern to task a person employed by the employer to carry out the section 20.9(3) investigation where the alleged acts of violence do not involve a supervisor or manager – a client or contractor for example –, it is not the best approach when the alleged violence involves representatives of management, as the present case illustrates rather well. In any event, I believe that the appropriate “check and balance” that counterweights the proposal of that person lies in the requirement for parties to accept the person as being impartial.

 

• [97] The heart of the issue in the present case is therefore whether Mr. King saw Mr. Stienke to be impartial and agreed with his appointment clearly, unequivocally and without reservation. The testimonies of Mr. King and Ms. Kays clearly show that they had, at the very least, serious concerns with his appointment, early on in the process. In a memorandum to the employer following the wellness check incident of February 25, 2016, Ms. Kays stated the following, among other things in relation to investigations of work place violence complaints:

 

[…] I also have serious concerns with the abilities of the people tasked to investigate these situations fairly and properly, I believe in Brad’s case that we will have to use a third party to properly investigate this matter in its entirety or have a representative from CUPW investigate with Management, report their findings as well to make sure a fair investigation is done.

 

• [98] Later in her memorandum and in relation to the need to investigate the wellness check incident, Ms. Kays referred to a “third party representative” and reiterates the request that a CUPW representative also investigates and writes a report along with a “third party person form management”. In her memorandum of April 15, 2016, written after receiving Ms. Faye’s decision on Mr. King’s complaint, Ms. Kays ends by formally requesting a “third party investigation”.

 

• [99] On June 22, 2016, and immediately prior to the beginning of the interview, Ms. Kays and Mr. King provided Mr. Stienke with a handwritten note which stated that they would proceed with the investigation “with extreme caution”. Mr. Stienke confirms that they were quite upset at that time. They wrote that their concerns included contact by Mr. Stienke with Ms. Faye on two separate occasions. Those concerns are also reflected in a memorandum dated June 20, 2016, two days prior to the interview, which was addressed and sent but apparently not received by Mr. Stienke. In that memorandum, Ms. Kays sets out her concerns and states as follows:

 

[…] the Union views this conversation [with Ms. Faye] as unsanctioned and prejudicial. It is not unreasonable for Mr. King and his Union to expect a fair and impartial investigation, and based on the above we will not be able to participate in the second level investigation until a third party impartial investigator is named in this investigation”.

 

• [100] The concerns related to the interactions that Mr. Stienke had with Ms. Faye upon his arrival to Halifax to commence his investigation and his response to their request for time off to prepare and Ms. Kays’ role in the process, raised concerns in Mr. King’s mind as to Mr. Stienke’s possible bias. These issues were eventually resolved by Mr. Gylywoychuk, who was Mr. Stienke’s manager and the appellant’s representative who had appointed Mr. Stienke.

 

• [101] This note is consistent with Ms. Kays and Mr. King’s state of mind regarding the investigation process, as it came out in the evidence adduced at the hearing. She testified that the discussion with Mr. Stienke on June 22, 2016, were along the same lines, although at the end of the day they agreed to participate, albeit with extreme caution. Mr. Stienke understood that the concerns expressed by the employees were related to him proceeding with the investigation and the fear of bias. Mr. Stienke testified that he was aware of Mr. King’s lack of trust with management. In his undated “Note about contact meeting with Brad and Nadine”, Mr. Stienke refers to Ms. Kays’ request that he go through her to contact Mr. King, as he had “no trust in management”. Ms. Kays and Mr. King considered Mr. Stienke as management. She testified that she believed they had to participate in Mr. Stienke’s investigation at the “second level”, and continued to be of the view that a third party impartial person was required.

 

• [102] The parties were speaking besides each other throughout the process. The manner in which the obligations under subsection 20.9(3) of the Regulations are described in the employer’s Policy and the words used by the employer in discussions with Ms. Kays, in my view, contribute to this “dialogue of the deaf” by referring to “second-level” investigations, or “competent investigator”, none of which are terms used in the Regulations. The Policy refers to the “competent person” process established by section 20.9 of the Regulations in an oblique way only, with the risk of creating confusion, which I find is what happened in the present case. As I already pointed out, the Policy is silent regarding the need for all parties’ acceptance of the person to be appointed in relation to his/her impartiality. In my view, the process prescribed in section 20.9 of the Regulations should be clearly explained to employees so that an informed judgement can be made on the acceptance of the person to be appointed.

 

• [103] Likewise, Ms. Kays references to “third party from management” – albeit with the caveat that a CUPW representative participate in the investigation and co-authors the report – simply adds to the confusion. In her discussions with Mr. Kelly regarding the next step after Ms. Faye’s investigation, Mr. Kelly speaks about “second level investigation” and the list, which we know comprises OHS managers from Canada Post across Canada. He mentions that someone from the Ontario region would be assigned to conduct the investigation. In the context that I have outlined, this could very well be understood as a second level management investigation to resolve the situation (as per subsection 20.9(2)), in light of the fact that the “first level investigation” had proceeded without the participation of Mr. King because of his perception that Ms. Faye had intimidated him and was in conflict of interest as a result. This view is not inconsistent with Mr. Stienke’s description of his role as “competent investigator”, which he saw as a duty to restore the work place and not to attribute fault or blame. In fact, as it turned out, the investigation did resemble an investigation by the employer, rather than by an impartial third party.

 

• [104] The employer argues that Mr. King or Ms. Kays have never raised the lack of impartiality of Mr. Stienke and have only objected to him once he had issued his report, which did not conclude in the manner hoped for by the respondents. I reiterate that there is no written record whereby Mr. King clearly expressed his agreement to Mr. Stienke’s appointment. The document Mr. Stienke handed out to Mr. King when they first met on June 22, 2016, listed three statements which Mr. Stienke considered were supportive of his impartiality. However, Mr. King and Ms. Kays were not asked clearly whether they accepted Mr. Stienke as being impartial.

 

• [105] All in all, I can only conclude that Mr. Stienke’s appointment was effected in an atmosphere of mistrust and suspicion on the part of the employees concerned. At this juncture, and given the confrontational context in which the investigation process had started out, the repeated expression of words such as “lack of trust in management”, “inappropriate interactions”, “extreme caution” and the lack of clear understanding of the process prescribed by the Regulations, the lights should have gone on and the matter of Mr. Stienke’s impartiality and his acceptance by the respondents should have been addressed squarely and clearly.

 

• [106] In my view, the employees had, to say the least, consistently expressed very serious reservations about Mr. Stienke and his investigation process, and it matters not whether their concerns were founded or not. It is no answer for Mr. Stienke to state that if Mr. King had clearly stated that he did not accept him because of his perception of Mr. Stienke’s lack of impartiality, he would have declined to continue on. There were enough bells and whistles to invite Mr. Stienke and the employer to take stock on the situation and clarify Mr. King’s willingness to continue, without reservation. At no point was Mr. King asked whether he saw Mr. Stienke as impartial, as envisaged by paragraph 20.9(3)(a), neither is there any written documentation to that effect. In other words, I find that there was no clear agreement expressed by Mr. King or his representative and the employer simply overlooked this crucial factor before allowing Mr. Stienke to proceed further.

 

• [107] Furthermore, I am not persuaded by the employer’s argument that the fact that the employees had agreed to continue with the interview amounts to an acceptance of Mr. Stienke’ impartiality as an investigator, within the framework of paragraph 20.9(1)(a). Given the overall factual context and the reservation clearly expressed by the employees, their willingness to be interviewed is far from a clear expression of acceptance of Mr. Stienke as an impartial person.

 

• [108] For those reasons, I conclude that the evidence does not establish that Mr. Stienke was seen by Mr. King or his representative, to be impartial as required by the definition of “competent person” in paragraph 20.9(1)(a) of the Regulations and in that respect, the ministerial delegate’s finding that the employer had contravened subsection 20.9(3) of the Code is well founded.

 

• [109] In light of my conclusion regarding the subjective component of the impartiality requirement established under paragraph 20.9(1)(a) of the Regulations, there is no need for me to decide whether Mr. Stienke was objectively impartial and maintained his impartiality throughout the process, since both components (objective and subjective) of the impartiality requirement must be met before a person can be appointed as a competent person.

 

• [110] I could stop here and dispose of the appeal. However, the respondents are seeking that the direction be varied to reflect violations of paragraphs 20.9(1)(a) and (b), and subsections 20.9(3) and (4) of the Regulations; a remedy that requires me to address a number of other questions. These questions relate to (1) the appeals officer’s authority to vary a direction by adding contraventions of the Code and Regulations as a result of the appeal hearing; (2) to the determination of whether Mr. Stienke had the requisite qualifications set out in paragraph 20.9(1)(b) of the Regulations; and (3) the jurisdiction of an appeals officer over the conduct of a competent person’s investigation and his report.

 

Additional contraventions

 

• [111] In their plea, the respondents are seeking that the direction be varied to include contraventions to paragraph 20.9(1)(b), and to subsections 20.9(3) and (4). They cite the Federal Court of Appeal’s decision in Martin as authority in support of this conclusion.

 

• [112] The power of an appeals officer to vary a direction has recently been considered in Rudavsky, cited in the appellant’s submissions. The following statements by the appeals officer in Rudavsky aptly summarize my understanding of what the Martin decision stands for and the extent and limits of an appeals officer’s authority to vary a direction under subsection 146.1(1):

 

[54] The power to vary a direction given to appeals officers by subsection 146.1(1) of the Code can be used to make minor changes to the wording of a direction or to modify the compliance date and is also broad enough to allow the substitution of a different contravention than the one cited originally provided that the new contravention is concerned with the same issue (problem, hazard, error) as the original contravention.

 

[55] Following the Vancouver Wharves decision, I have the power to vary a direction issued by HSO Noel by substituting a new contravention for the original contravention cited provided that the new contravention is based on the same facts considered by the HSO. If the concern is with some other failure of the respondent that HSO Noel did not identify, or choose not to identify, then citing a new contravention would constitute more than “varying” the original direction - it would be a new direction.

 

[…]

 

[59] To be clear, there is no express authority in subsection 146.1(1) for an AO to issue a subsection 145(1) direction. The only express power an AO has to issue a direction is the power to issue a danger direction under subsections 145(2) or (2.1). This power is set out in section 146.1, which applies to appeals of subsection 145(1) contravention directions, subsections 145(2) and (2.1) danger directions and appeals of an HSO decision in a work refusal situation (subsection 129(7)).

 

[…]

 

[63] I do not believe that I can extend Mr. Justice Rothstein’s reasoning so as to conclude that I can issue a subsection 145(1) contravention direction about an issue not considered by the HSO. The reasoning in Martin cannot be stretched to the point where it can be said that an AO has an open-ended power to issue completely new subsection 145(1) directions. I do not have the ability to issue a direction for a situation the HSO did not consider, or did consider but then decided not to issue a contravention direction and to receive an AVC from the employer. Further, if there are problems arising from compliance with a direction after it has been issued, these are not matters that the HSO originally considered or could have considered, and so are not matters that are subject to a new direction.

 

[My underlining]

 

• [113] The question therefore is the extent to which the ministerial delegate has considered the circumstances supporting a finding of contravention of paragraph 20.9(1)(b) and subsection 20.9(4) of the Regulations? It seems clear to me and understood by the parties that the basis upon which the ministerial delegate found a contravention is limited to the application of the requirement that a competent person “be impartial and seen to be impartial”, as she stated in her direction. Additionally, in her investigation report, she makes numerous references to the fact that there was no documentary evidence that Mr. King had agreed to Mr. Stienke as an impartial investigator, and she accepted Mr. King and Ms. Kays’s statements, as I do, that they had never agreed or accepted him as an impartial investigator. Therefore, it seems to me that the foundation of the direction is even more restrictive and is linked solely to the subjective dimension of impartiality, that of “being seen by the parties” to be impartial.

 

• [114] That being said however, it does not mean that I could not vary the direction by adding other heads of contravention that flow from the same set of circumstances that were investigated by the ministerial delegate, if the circumstances warrant it. The circumstances I refer to here are the appointment of a “competent person” by the employer pursuant to 20.9(3). The contravention identified in the direction is properly described as a contravention of subsection 20.9(3). The requirement of impartiality in (a), the qualifications in (b) and (c) are set out in a definition section, subsection 20.9(1). As such, there can be no contravention of a definition section of the Regulations, per se. Thus, the provision that has been contravened is the obligation on the employer to appoint a competent person, as mandated by subsection (3) and this is the provision that is properly referred to in the direction.

 

• [115] That being the case, I am of the opinion that, in a de novo review of the direction and the circumstances that led to the direction as stipulated in section 146.1 of the Code, I can properly consider arguments going to whether the person appointed by the employer fulfilled the requirements of paragraph 20.9(1)(b), which is one of the elements of the substantive obligation to appoint a “competent person” set out in subsection 20.9(3). Those questions relate to the characteristics of a competent person and are in close proximity to the provision identified by the ministerial delegate for which the employer was found to be in contravention. Doing so would not cause me to venture into completely new territory and would remain essentially concerned with the same factual situation that the ministerial delegate was called upon to consider—or ought to have considered—in her investigation (see: Canadian Union of Postal Workers v. Canada Post Corporation, 2013 OHSTC 23). Because the ministerial delegate focussed on the criterion of impartiality does not preclude me from considering whether the person objectively satisfied the other prerequisite elements.

 

• [116] Did Mr. Stienke possess the “knowledge, training and experience in issues relating to work place violence” required by paragraph 20.9(1)(b)? Mr. Stienke referred to the document he shared with the employees on June 22, 2016, which sets out his qualifications in relation to issues of work place violence. The Regulations are silent on the nature and extent of the knowledge and the training factors, as well as the length of experience that would satisfy that criterion. In order to fulfill the objective of the Regulations, it would make sense that the qualifications be assessed in relation to the nature and complexity of the complaint to be investigated. In Pronovost v. Canada (Revenue Agency), 2017 FC 1077 (Pronovost), the Federal Court was seized of an application for judicial review to set aside a decision of the employer to dismiss the applicant’s work place violence complaint based on the conclusions and recommendations of a “competent person” appointed under 20.9(3) of the Regulations. The grounds in support of the application were the deficiencies in the conduct of its investigation and that person’s lack of qualifications. The Court allowed the application. Martineau J. states as follows, at paragraph 21:

 

[21] One last point: work place harassment and violence should never be trivialized. As this Court recognized in Public Service Alliance of Canada v Canada (Attorney General), 2014 FC 1066 at paragraph 29, “psychological bullying can be one of the worst forms of harm that can be inflicted on a person over time”. Naturally, the experience and qualifications of the competent persons appointed to investigate have an impact on the confidence level required from management and the employees. A sound awareness of the complex issue of harassment and its pernicious components is obviously required. Also, we can ask ourselves how the investigator — whose curriculum vitæ was never provided to the applicant — could disregard, at the end of what was in sum a very cursory investigation, the applicant’s psychological harm caused by the alleged acts of violence and/or harassment, based on the applicant’s emotional vulnerability, when he did not have, it appears, any medical expertise or particular qualifications to give this opinion.

 

[Underlining added]

 

• [117] Mr. Stienke presented his qualifications at the time of his appointment, prior to commencing his investigation. He had been a member of the subject matter expert team of Canada Post for three years at the material time. The team was tasked with increased knowledge, training and experience in respect of the requirements of section 20.9 of the Code and the Policy so that they could in turn provide coaching and assistance to local operations personnel when administering the Policy. He participated in the implementation of the Policy by the employer, which led him to participate in the development of employer practices and training packages in that subject matter. He completed several training modules provided by the Canadian Centre for Occupational Health and Safety, that on their face address issues of work place violence. He has experience coaching operations personnel in Ontario and handling and investigating work place violence complaints and has conducted dozens of “first-level” investigations. He is aware of the Code requirements as it pertains to work place violence and has on many occasions been called upon to interpret its provisions in the course of its work. It can be said that Mr. Stienke’s professional experience exposed him to work place violence issues over a number of years.

 

• [118] Turning to the nature of the complaint, without suggesting in any way that Mr. King’s complaint is trivial or not genuine, I would characterize the level of complexity of an investigation into a complaint of that nature not to be at the high end of the spectrum, considering the events alleged to have occurred, the timelines and the nature of the accusations.

 

• [119] There is no evidence that Mr. King or Ms. Kays disputed those qualifications at the time of the appointment. As stated in Natural Resources Canada, those qualifications must be assessed at the time of appointment and, if objected to, eventually determined by the ministerial delegate. There is no evidence that there was a discussion or objections on the matter at the outset of the interview. The parties did not present fulsome submissions on what ought to be the acceptable minimum threshold of competence or familiarity with the subject matter of work place violence required by the Regulations and I am reluctant to make a determination on that point in the absence of such submissions. I consider it sufficient to say that a priori, the nature of Mr. Stienke’s knowledge, training, and experience, while being of a fairly basic nature, meets the minimum threshold as required by paragraph 20.9(1)(b) in relation to the complaint that was referred to him for investigation. As it turned out, his lack of experience was more in relation to the procedural aspects of conducting a 20.9(4) investigation and drafting a formal report setting out his conclusions and recommendations.

 

• [120] The difficulty I have with the respondents’ position is that much of their argument on that point rests on Mr. Stienke’s conduct during the investigation and in the preparation of his report. The respondents cite the Natural Resources Canada decision in support of their position that the ministerial delegate and the appeals officer may consider the manner in which the investigation was conducted and the deficiencies in the report to make a determination on whether the person in fact possessed the necessary qualifications and maintained its impartiality throughout the process. The deficiencies noted by the respondents essentially include Mr. Stienke’s decision not to interview the CUPW witnesses while making a determination that there was no evidence of work place violence, not including the wellness check incident in his investigation and having his draft report subjected to several reviews by colleagues and superiors at Canada Post. The respondents argue that those actions clearly establish retrospectively that Mr. Stienke did not, after all, have the qualifications— including impartiality—required under paragraphs 20.9(1)(a) and (b) and should not have been appointed.

 

• [121] With respect, I have great difficulty with this submission and the analysis set forth in obiter in Natural Resources Canada, as it misconstrues the process prescribed under section 20.9 of the Regulations.

 

• [122] In my view, subsections 20.9(3) to (5) establish a sequential process. The obligation placed on the employer under the scheme set out in 20.9(3) is to appoint a “competent person” to investigate a situation of alleged work place violence that has not been resolved by the parties involved following their efforts to do so (subsection 20.9(2) of the Regulations). The person to be appointed must meet the conditions prescribed in the definition of “competent person” set out at subsection 20.9(1). Those conditions must be met at the time of the appointment and any objection or debate over them ought to be resolved at that time.

 

• [123] Once the competent person is appointed, his/her duty is set out in 20.9(4) and the matter is out of the hands of the employer. That person and that person only must conduct an investigation into the complaint and prepare conclusions and recommendations that the employer must in turn implement in the manner set out in paragraph 20.9(5)(c). That provision places no obligation or authority on the employer to dictate the manner in which the mandate must be carried out. This is the very essence of the respondents’ arguments in the present case. The “employer” is not defined for the purpose of 20.9(3), which does add a level of difficulty of interpretation when the person appointed is employed by the employer. I have already expressed the view that there is nothing in the Regulations that prevents a person employed by the employer to be appointed as a competent person, providing that all conditions set out in section 20.9 are met. However, the spirit of the scheme is that such a person, once appointed, is not acting as a representative of the employer in carrying out his/her mandate under subsection 20.9(4). The competent person must do so at arm’s length from the employer, and to the extent that the person is accepted by all parties duly informed of the situation, the process can, in my view, serve its purpose.

 

• [124] There is no question that the competent person must act impartially and independently from any influence of the employer in carrying out that duty, to ensure the credibility and acceptability of the conclusions and recommendations in the report. That is the premise underlying the investigation scheme set out in section 20.9. However, I am not persuaded by the argument that such an obligation must be seen to continue in time as a continuous obligation resting on the employer. Those rules of conduct apply to the competent person, the investigation and the preparation of the report. The argument of the respondents would confer on the ministerial delegate and the appeals officer an oversight or appellate role akin to judicial review of the competent person’s investigation and report. That person is not acting qua employer and is not a federal undertaking that is subject to the substantive provisions of the Code, as defined in section 2 of the Code. I find it difficult to subscribe to the respondents argument that the employer must assume responsibility for the competent person’s alleged failures in the investigation process under such a scheme, with the possible consequence of retrospectively rendering the appointment void.

 

• [125] I am also troubled by the implications of the respondents’ arguments for another reason. Accepting that a ministerial delegate and appeals officer on appeal may consider the conduct of the investigation and the report for the purpose of determining, retrospectively, whether the person was in fact impartial and qualified at the time of the appointment, leads to an unacceptable result. The logical consequence of that argument is that the employer would be in contravention of the Code (subsection 20.9(3) of the Regulations) retrospectively, through the actions of a person over whom it has, and should have, no authority or influence. A contravention of the Code is an offence and is enforceable by way of prosecution. It simply does not make sense that a party may be charged with contravening the Code where the actions supporting the contravention are those of a third party under the scheme of the Regulations.

 

• [126] Furthermore, under what standard of review such a review would take place? Questions of procedural fairness are typically reviewed on a standard of correctness. The implications of the respondents position is that officials and ultimately the appeals officer could review with minutiae the investigation process and the conclusions, which does not sit well in my view, with the economy of the scheme established under section 20.9 of the Regulations. I agree with the proposition that ministerial delegates and appeals officers have jurisdiction to oversee the extent to which the employer, one of the parties subject to the Code, has properly met its obligations under that provision. In my view, that obligation crystallizes at the time of appointment: first, appoint a competent person who meets the conditions set out at subsection 20.9(1), and second, to act on the report in the manner prescribed by subsection 20.9(5). I subscribe to the appellant’s arguments that what happens in between cannot properly be subject to a ministerial delegate or appeals officer’s review.

 

• [127] There is no question that a competent person must act impartially and independently and exercise its mandate with due procedural fairness. The real question is where lies the authority or jurisdiction to review the investigative process if it is, as the respondents contend, flawed. In my view, the complaining party is not without a remedy should the “competent person” fail to abide by this obligation. The person acts under the umbrella of subsection 20.9(4) of the Regulations in a process that has been described as “formal” by the Federal Court of Appeal. While the report contains recommendations, which by definition are not binding conclusions, the employer must nevertheless address them in the manner prescribed by paragraph 20.9(5)(c). Therefore, the outcome of that process affects legal rights, imposes obligations on the employer or causes prejudicial effects to the complainant. I would think that, at the very least, basic requirements of procedural fairness, neutrality and thoroughness apply to the exercise of the mandate provided in section 20.9 of the Regulations. For those reasons, I have difficulty brushing aside the possibility for the parties to challenge the conduct or the findings of the competent person before the Federal Court, on an application for judicial review. It would seem to me to be at least arguable and more in line with the economy of our judicial system that the conduct of the competent person in carrying out his/her statutory mandate could be subject to the oversight power of the Court, applying the body of caselaw setting out the rules regarding the scope and standard of review of such a process.

 

• [128] For example, in Pronovost, the Federal Court dealt with an application for judicial review against the decision of an employer (Canada Revenue Agency) dismissing an employee’s work place violence complaint. The employer’s decision was taken solely on the basis of the report prepared by a “competent person” appointed under subsection 20.9(3) of the Regulations, and represented the follow up to the report as required by paragraph 20.9(5)(c). The parties had expressly agreed on the appointment of the person in question. The report of the competent person was attacked essentially on the same grounds as those raised by the respondents in the present case: a breach by the competent person of his duty of procedural fairness in the investigation and the unreasonableness of his conclusions. In paragraph 13, Martineau, J. states as follows:

 

[13] […] Although the Regulations do not provide a specific procedure, it should be noted that the investigation has significant consequences on staff relations in the work environment in question, as well as on the professional career and the psychological condition of the alleged victim and any person referred to in the work place violence or harassment complaint. These considerations are determinative in this case. In fact, the duty of procedural fairness in the context of harassment allegations is a particularly heavy one (see in particular Renaud v Canada (Attorney General), 2013 FC 18, aff’d Renaud v Canada (Attorney General), 2013 FCA 266). Even though Renaud involved a harassment complaint under the Treasury Board’s Harassment Policy, the same stringency applies here, since harassment can constitute violence for the purposes of Part XX of the Regulations.

 

[Underlining added]

 

• [129] The Court recounts some of the deficiencies in the manner in which the competent person had conducted his investigation. They included the failure to inform the complainant of other witnesses’ evidence, which was unfavourable to her, depriving her of an opportunity to rebut such evidence; the lack of analysis of the evidence in the file and the absence of sufficient reasoning to understand how the investigator arrived at the conclusion that the manager’s alleged acts did not constitute violence. In short, much of the same issues as the ones raised by the respondents. The Court was not persuaded that the competent person had conducted a thorough and serious analysis of the file. The Court went on to state at paragraphs 18 to 20 as follows:

 

[18] The employer’s decision to dismiss the work place violence complaint is not an acceptable outcome. It is obvious that the investigator did not conduct a thorough and serious analysis of the file and that his investigation is seriously deficient. The applicant’s complaint refers to several facts and incidents that — if they are taken as proved at this stage — could constitute violence within the meaning of the Regulations. […]

 

[19] It must be noted that the incidents described in the preceding paragraph — which were not isolated ones — appear to contradict the investigator’s general finding that the impugned behaviour was no more than administrative measures relating to the employer’s exercise of its management rights. […] Certainly, the impugned administrative measures are the subject of grievances, and the harassment allegations will indeed be considered in a separate investigation. Nevertheless, the employer’s obligation under Part II of the Code to provide a violence-free work place involves potentially different behaviours, even though there may be some overlap. In short, we are referring to the very atmosphere of the work place, which should not be tainted by the insulting or aggressive behaviour of managers or employees. Intimidation of any kind is toxic to interpersonal relationships and contributes to an unhealthy work environment for both the employer and the employees. Work place violence prevention is meant to reprimand incidents that would not necessarily be contrary to the collective agreement — when they are examined in isolation in the context of a grievance, or when they would not necessarily amount to psychological harassment, but where Parliament has nonetheless deemed it necessary to ban it in general in order to provide a safe, healthy, and violence-free work place. The place, the means, and the tone used by a manager to warn or reprimand an employee are important elements to consider when an employee makes a work place violence complaint.

 

[20] Therefore, to summarize, the investigator had to ensure that the employer’s work place was safe, healthy, and violence-free. However, nothing in his report indicates that such an investigation indeed took place. The multiple incidents alleged by the applicant, listed above, could at the very least indicate the existence of a certain atmosphere of violence, and therefore would have warranted a more thorough examination. The investigator would, of course, have been at liberty to ultimately dismiss the applicant’s allegations — in the event that the investigation revealed that they were not founded and that the work place was healthy and violence-free.

[Underlining added]

 

• [130] My point in referring to Pronovost is that it shows that the kind of deficiencies that the respondent is bringing to the fore are capable of being addressed by the Federal Court under its judicial review powers. It is fair to say that the Court would not have exercised its authority had it been of the view that another administrative measure of redress had been available, such as the intervention of a ministerial delegate or an appeals officer under the Code, as argued by the respondents. Consequently, I am not persuaded by the statement that the report of a competent person is “a long way” from being judicially reviewable on public law principles, as stated in Natural Resources Canada. The Pronovost judgement tells us otherwise and implies that the competent person’s investigation process bears many features of a quasi-judicial process.

 

• [131] For all the reasons above, I will not vary the direction by adding a reference to paragraph 20.9(1)(b) of the Regulations, as sought by the respondents.

 

Contravention of subsection 20.9(4) of the Regulations

 

• [132] There remains the request to vary the direction by adding a contravention to subsection 20.9(4) of the Regulations, which sets out the duty on the competent person to investigate the work place violence and provide a written report with conclusions and recommendations to the employer. It is trite to observe that Mr. Stienke did conduct an investigation into Mr. King’s complaint of work place violence, and that he wrote a report to the employer containing conclusions and recommendations, ostensibly fulfilling his mandate under 20.9(4). The respondents’ argument, if I understand correctly, is again largely premised on their submissions that since Mr. Stienke was not a “competent person” because he did not have the knowledge, training and experience set out at paragraph 20.9(1)(b)—in addition to not being impartial—as revealed by the “pattern of deficiencies” identified by the respondents, it cannot be said that he presented a “competent person report” within the meaning of subsection 20.9(4). The employer was therefore at fault in appointing him ab initio and must bear the responsibility and be found in contravention of that provisions as well.

 

• [133] In my opinion, it is not appropriate to add subsection 20.9(4) to the direction. First, 20.9(4) is concerned with the conduct and the outcome of the investigation process. The facts in support of the respondents’ claim all have to do with Mr. Stienke’s conduct of his investigation. As I have reasoned above, that area falls outside the scope of review by an appeals officer.

 

• [134] Secondly, since this argument has more to do with the outcome of the investigation process rather than the appointment of a “competent person”, which is the issue in the present appeal, the restrictions placed on my authority to vary a direction set out in Rudavsky and which I have endorsed, apply in my view. The ministerial delegate never considered that particular provision of the Regulations, nor the conduct of Mr. Stienke’s investigation. Consequently, this would take us beyond the circumstances of the direction, as stipulated in section 146.1. In other words, it would amount to a new direction, rather than a variance of the direction under appeal.

 

• [135] Thirdly, I fail to see how the employer can be found at fault of complying with subsection 20.9(4), since that provision is solely concerned with the competent person’s investigation process and outcome. There is no obligation or authority on the employer to ensure that the investigation by a “competent person” is conducted in a particular manner. As I have reasoned in the previous pages, the scheme is conceived in a way that the employer should play no role in the investigation by a “competent person”, whoever that person may be. The competent person must prepare a report that will set out findings, conclusions and recommendations to the employer. The employer, in turn, must follow up on the report as required by subsection 20.9(5) and adapt its work place violence prevention and control measures in light of those conclusions and recommendations. I cannot see how the employer can be found in contravention of subsection 20(4) of the Regulations under such a scheme.

 

• [136] In any case, I am of the view that it would be redundant and unnecessary to include a reference to subsection 20.9(4) in the direction, as I consider the respondents’ argument to flow from the primary contravention, so to speak, for which the proper reference is subsection 20.9(3) of the Regulations. I have already decided to confirm the direction as being well-founded.

 

Decision

 

• [137] For the reasons set out above, the appeal is dismissed and the direction issued by Ministerial Delegate Deborah Gillis-Williams on May 29, 2017, is confirmed.

 

 

 

 

 

Pierre Hamel

Appeals Officer