In a recent decision in Neustaedter v. Alberta (Labour Relations Board), the Alberta Court of Appeal (ABCA) upheld an appeal from the Alberta Labour Relations Board confirming penalties to the appellants under the Alberta Occupational Health and Safety Act (OHSA) for interfering with and refusing to participate in interviews related to a workplace fatality.

Background

In October 2019, an employee of the corporate appellant, Volker Stevin Contracting Ltd. (VSC), was fatally injured at a worksite. Pursuant to an investigation by Alberta Occupational Health and Safety (OHS), an OHS officer attended VSC’s office to interview certain witnesses; however, legal counsel for VSC present at the time refused to leave the room, and the interviews did not proceed. Thereafter, OHS sent letters to VSC requesting interviews with various witnesses alone without legal counsel, but VSC’s legal counsel refused claiming that the Charter of Rights and Freedoms (Charter) afforded the employees the right to have legal counsel present during any OHS interview.

Later, OHS served VSC with four Orders issued under the OHSA requiring each of the four employees to attend video interviews to allow for the collection of information. Again, legal counsel for VSC contended that the OHS officer did not have authority to require attendance at an interview without legal counsel. 

As a result of the above, an OHS officer issued administrative penalties against VSC for interfering with or hindering an OHS investigation by refusing to permit witnesses to participate in a private interview without legal counsel. The OHS officer also issued administrative penalties against each of the individual appellants for refusing to participate.

VSC and each of the employees appealed the penalties to the Alberta Labour Relations Board (ALRB), claiming that the penalty provisions were unconstitutional, OHS could not compel interviews, OHS could not insist on interviews being conducted without legal counsel, the appellants did not breach the OHSA, and the penalties imposed were inappropriate in any event. 

The ALRB dismissed the appeals, and the appellants filed Originating Applications for judicial review. The chambers judge concluded that the ALRB decision was reasonable, dismissed the applications and awarded costs against the appellants. The appellants then appealed both the substantive and costs decisions.

In dismissing the appeal, the ABCA noted that section 51(j) of the OHSA expressly gives OHS officers the authority to interview and obtain statements for the purposes of the OHSA; section 53(2) mandates that witnesses comply with an OHS officer’s request for information; and, section 54 requires witnesses to cooperate. 

The ABCA confirmed that the previous Court of Queen’s Bench (now Court of King’s Bench) decision in Ebsworth v. Alberta (Human Resources and Employment) (Ebsworth) is good law, and it was not overruled by the ABCA as claimed. 

Practically, the ABCA noted that there was no concern about self-incrimination because information obtained under section 53(2) is obtained for the purposes of the OHSA, including the prevention of worksite incidents and injuries, and not for the purposes of prosecution. Moreover, section 53(7) of the OHSA expressly provides that statements are “not admissible in evidence for any purpose in a trial, public inquiry under the Fatality Inquiries Act or other proceeding,” except for specific enumerated purposes, including impeaching a witness. Thus, those statements are rarely disclosed except in unusual circumstances.

The ABCA indicated that it did not find any authority, nor did the appellants provide any, to suggest that the section 7 Charter “principles of fundamental justice” include an entitlement to have legal counsel present during such an interview. 

Takeaway

The takeaway from this decision is that OHS officers are generally given broad authority under the OHSA to conduct an investigation, including interviewing witnesses without legal counsel present. Taking an aggressive approach, as here, to such reasonable requests will not only result in potential penalties but may likely result in a less favourable overall outcome to any charges. While an OHS officer does not have carte blanche to conduct an investigation, companies are encouraged to fully cooperate and not interfere with such investigations, especially those involving a fatality.