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No. 19–Application to appeal of a Decision or Direction under Part II

Information Circular

The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.

Occupational Health and Safety Under Part II of the Canada Labour Code

The Canada Labour Code (the Code), Part II (Occupational Health and Safety), gives the workplace parties—employees and employers—a strong role in identifying and resolving health and safety concerns. The provisions of the Code are designed to strengthen employers’ and employees’ self-reliance in dealing with occupational health and safety issues and thereby making workplaces safer. It applies to employees and employers in federally regulated industries and to the federal public service.

The Canada Industrial Relations Board (the Board) hears appeals of decisions rendered by the Head of Compliance and Enforcement (the Head) in the context of a work refusal (section 129(7) of the Code) and appeals of a direction issued by the Head (section 146(1) of the Code).

For more information about complaints under Part II of the Code, please contact the Labour Program at 1-800-641-4049 or consult its Official website.

Who may appeal?

If you are an employee who refused to work because you believed there was a danger (or a person designated by the employee) and you disagree with the Head’s decision (i) that a danger does not exist; (ii) that a danger exists, but the danger is a normal condition of employment; or (iii) that a danger exists, but the refusal puts the life, health or safety of another person directly in danger, you may appeal that decision.

If you are an employer, employee or trade union (hereinafter referred to as a “union”) that wants to challenge a direction issued by the Head, you may appeal that direction.

Time Limit to Appeal

For decisions rendered in the context of a work refusal, under section 129(7) of the Code, an employee has 10 days after receiving notice of the decision from the Head to file an application to appeal.

For directions, under section 146(1) of the Code, an employer, employee or union has 30 days after the issuance or written confirmation of the direction to file an application to appeal.

Stay of Direction

Section 146(2) of the Code provides that an appeal of a direction does not operate as a stay of the direction. Directions issued by the Head must be complied with immediately or within the time specified, even pending appeal, except when a party obtains a stay of the direction, pending the resolution of the appeal.

In applications for a stay of a direction, the Board exercises its discretionary powers by weighing the following criteria:

  • The applicant must satisfy the Board that there is a serious question to be tried, as opposed to a frivolous or vexatious claim.
  • The applicant must demonstrate that they would suffer significant harm if the direction is not stayed.
  • The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

How to File an Application to Appeal with the Board

An appeal is initiated when an employer, an employee or a union files an application to appeal with the Board.

The Application to Appeal Form is available online. It is strongly recommended that applicants use this form. It asks for the necessary information that the Board requires to consider and determine the application to appeal. Not completing this form may cause delays in the appeal process.

The applicant may file their application to appeal at any of the Board’s regional offices. It may also be submitted electronically through the Board’s e-Filing Web Portal, or sent by courier or mail. In such cases, the application to appeal is deemed to be filed on the date of receipt by the Board. If the application to appeal is sent by registered mail, the filing date is the date it was registered and mailed.

The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential pursuant to section 22 of the Canada Industrial Relations Board Regulations, 2012. The Board provides public access to case files and posts key decisions on its website. Board decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.

What happens after an application to appeal is filed with the Board?

Head Informed of the appeal

Pursuant to section 146.01(1) of the Code, the Board informs the Head in writing when an appeal is brought under section 129(7) or section 146(1) and provides the Head with a copy of the application to appeal.

Request for Documents from the Head

Pursuant to section 146.01(2) of the Code, the Head must, on request of the Board, provide the Board with a copy of any document that the Head relied on for the purpose of making the decision or issuing the direction being appealed.

Documents Provided to the Head

Pursuant to section 146.01(3) of the Code, the Board shall, on request of the Head, provide to the Head a copy of any document that is filed with the Board in the appeal.

Acknowledgment Letter

A letter will be sent to the applicant and the other party/parties, with a copy to the Head, acknowledging receipt of the application to appeal and enclosing a copy of the application to appeal and of any document that the Head relied on for the purpose of making the decision or issuing the direction being appealed. The letter will also inform the parties of the name and contact information of the Board’s Industrial Relations Officer (IRO) appointed to the application to appeal. The IRO is responsible for managing the file and assisting the parties in reaching a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 01–The Role of the Board’s Industrial Relations Officers.

Filing of Further Documents or Submissions

If a party/parties (an employer, an employee affected by the application, a bargaining agent and/or the Head) wish(es) to file a response to the application to appeal, said party/parties must do so within 15 days from the receipt of the Board’s letter. Upon receipt of any response(s), the applicant will have 10 days to file a reply, if any, only with respect to the response(s) submitted by the other party/parties.

The Board may refuse to consider any documents or submissions received after the prescribed time limit.

Exchange of Documents

Parties are required to serve on the other party/parties a copy of any response, reply or other document filed with the Board, and to advise the Board in writing of the time and manner of delivery, which is called service. The manner of service includes delivery by email, by courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the appeal.

Representations by Head

The Head may, in an appeal under Part II of the Code, present evidence and make representations to the Board. If the Head wishes to file a response to the application to appeal, this response must be filed within 15 days from receipt of the Board’s letter, and a copy of this response should be provided to the other parties. The applicant will then have 10 days from the receipt of the Head’s response to file a reply.

Mediation Meeting

The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary, and the information acquired by the officer in the mediation process shall remain confidential and shall not be disclosed to the Board.

Oral Hearing

If the appeal is not resolved, it will be referred to the Board and the Board may decide it without holding an oral hearing. In such a case, the Board would determine the application to appeal based on the written submissions filed by the parties. If the Board decides to hold an oral hearing, it will inform the parties of the date and place of the hearing.

External Adjudicators

The Chairperson of the Board may appoint a member of the Board or an external adjudicator to hear and determine the application to appeal. Members of the Board and external adjudicators have all the powers, duties and functions conferred on the Board by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.

Decision of the Board

The Board will notify the parties in writing of its decision, with reasons. A copy of the Board’s decision will also be provided to the Head. All key decisions of the Board are published on its Official website. Decisions of the Board are subject to judicial review by the Federal Court of Appeal.

What remedies can be ordered by the Board?

The Board has the power to confirm, rescind or vary, in whole or in part, the decision or direction being appealed and issue any direction that it considers appropriate under sections 145(2) or (2.1) of the Code.