The Alberta Labour Relations Board has dismissed an appeal by Sherlock Environmental Services Ltd. against an Occupational Health and Safety (OHS) compliance order, ruling that the appeal was filed beyond the statutory 30-day deadline.
On Aug. 2, 2024, OHS issued a compliance order to Sherlock Environmental Services Ltd. (the “Appellant”) under section 38 of the Occupational Health and Safety Act. The order related to the company’s methods for measuring airborne concentrations of harmful substances, specifically concerning asbestos handling.
The order required the Appellant to:
- Submit at least two field blanks or 10 per cent of the total samples, whichever is greater.
- Provide proof of utilizing proper methodology for air sampling volumes, as the volumes previously used were lower than what the National Institute for Occupational Safety and Health (NIOSH) 7400 procedure sets for clean environments (3,000 to 10,000 litres).
The compliance date was initially set for Aug. 16, 2024.
Communications and extension
In August 2024, the Appellant sought feedback from OHS regarding the requirements under the order. OHS did not respond until Sept. 11, 2024, when it confirmed the order’s contents and extended the compliance date to Sept. 25, 2024.
Believing that the extended compliance date affected the appeal period, the Appellant filed a notice of appeal on Sept. 24, 2024, seeking to vary the compliance order.
OHS’s position on timeliness
OHS applied to have the appeal summarily dismissed under section 45(5)(g) of the Act and Rule 31 of the Board’s Rules of Procedure for OHS Appeals. OHS argued that the appeal was not served within the 30-day period stipulated in section 45(3) of the Act.
“A statutory time limit cannot be extended,” OHS submitted, emphasizing that the appeal should have been filed by Sept. 2, 2024—30 days after the initial order was issued.
The employer’s argument
The Appellant contended that it was prejudiced by OHS’s delayed response and had been attempting to work with OHS in good faith. It argued that the Labour Relations Board had the authority to extend the timelines, citing:
- Rule 63 of the OHS Rules, which allows the Board to relieve against non-compliance with the rules to avoid a miscarriage of justice.
- Section 46(9) of the Act, granting the Board authority to establish procedural rules.
- Section 46(11) of the Act, giving the Board exclusive jurisdiction to exercise powers conferred by the Act.
- Section 12(1) of the Labour Relations Code, emphasizing the Board’s jurisdiction to perform its powers and duties.
The board’s decision
Vice-Chair Wassila Semaine, appointed to address the preliminary matter, ruled that the appeal was untimely and dismissed it summarily.
“The Appeal Body has not been granted this power,” Vice-Chair Semaine stated, referring to the inability to extend statutory deadlines. She emphasized that the jurisdiction of the Appeal Body is confined to consider only appeals properly commenced within the statutory period.
Key Points from the Decision:
- Statutory Deadline Enforcement: The appeal was filed on September 24, 2024, which was beyond the 30-day limit from the original order date of August 2, 2024. “Section 45(3) of the Act is not so permissive,” the decision noted.
- Extension of Compliance Date Irrelevant: The extension of the compliance date to September 25, 2024, did not affect the statutory deadline for filing an appeal. “When the timelines for compliance were extended, OHS did not reissue a new compliance order,” Vice-Chair Semaine explained.
- Lack of Authority to Extend Deadlines: The Board found that it lacked statutory authority to extend the 30-day appeal period. Reliance on Rule 63 of the OHS Rules and sections of the Labour Relations Code was insufficient to override the clear statutory time limit.
For more information, see Sherlock Environmental Services Ltd. v Occupational Health and Safety, 2024 ABOHSAB 19 (CanLII).
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