AMENDED LIBRARY SHEET
DIRECTOR, OCCUPATIONAL - and - THE OCCUPATIONAL
HEALTH AND SAFETY DIVISION HEALTH AND SAFETY
representing the Department of PANEL designated pursuant to
Environment and Labour, Section 68 of the Occupational
representing Her Majesty the Health and Safety Act to hear
Queen in Right of the Province the matter of an appeal noted
as Case No. 2000-0030 and THE ANNAPOLIS VALLEY REGIONAL SCHOOL BOARD
(Appellant) (Respondents)
- and -
NOVA SCOTIA TEACHERS UNION and LOIS GILLIS
- and -
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 3876
CA 172263 Halifax, N.S. Flinn, J.A.
Cite as: Nova Scotia (Environment and Labour) v. Nova Scotia (Occupational Health and Safety Appeal Panel), 2001 NSCA 162
APPEAL HEARD: September 28, 2001
JUDGMENT DELIVERED: November 15, 2001
SUBJECT: Occupational Health and Safety Act, S.N.S. 1996, c.7 - Obligation on the Occupational Health and Safety Division of the Department of Labour to investigate a work refusal - Internal Responsibility System.
SUMMARY: An appeal panel set up under the Occupational Health and Safety Act ordered the Director of the Occupational Health and Safety Division of the Department of Labour to investigate an employee’s work refusal at the Windsor Regional High School. The Director appealed claiming:
1. The appeal panel erred in jurisdiction by addressing an issue (whether the employee had reported her work refusal to the Division under s. 43(2)(c) of the Act) which issue was not properly before the appeal panel;
2. The appeal panel exceeded its jurisdiction by ordering the Director to investigate the work refusal contrary to s. 69(6) of the Act;
3. The appeal panel made material findings of fact not supported by the evidence;
4. The appeal panel erred in law in its interpretation and application of s. 43 of the Act, particularly in view of the internal responsibility system which is the foundation of the Act.
RESULT: Appeal dismissed.
The court of appeal dealt with the Director’s four grounds of appeal as follows:
1. The issue as to whether the employee reported her work refusal pursuant to s. 43(2)(c) of the Act was clearly a matter that was before the appeal panel and all of the parties addressed it;
2. The appeal panel has the jurisdiction to make the order which it did in this case;
3. There was ample evidence to support the factual findings which the appeal panel made in this case;
4. A review of the circumstances of this case clearly demonstrate that the internal responsibility system failed, thereby calling for the application of s. 2(d) of the Act which sets out the supplementary role of the Director “to intervene appropriately
when those responsibilities are not carried out.”