Can a person who is requested or ordered to submit to an interview with an Alberta Occupational Health and Safety officer insist upon having legal counsel present for the interview? The answer in Alberta currently is, “No.”
The Alberta Court of Appeal recently released a decision that addresses the powers of Alberta Occupational Health and Safety officers to require participation in investigative interviews with individuals who have information regarding workplace injuries and incidents and more specifically, to participate without any legal counsel present.
In Neustaedter v Alberta (Labour Relations Board), 2024 ABCA 238, the appellants appealed the administrative penalties that had been issued against them by an Occupational Health and Safety officer for failing to participate in interviews with the officer, which were requested by the officer following a worksite fatality. The appellants consisted of four employees and the employer itself.
After the fatality, the officer arrived on the scene to interview two of the employees, one of whom was directly involved in the accident and the other of whom was a safety representative who had been on the phone with the first employee at the time of the accident.
Legal counsel was present when the officer arrived. The officer explained that it was the policy of Occupational Health and Safety (OHS) to conduct interviews without legal counsel present and asked legal counsel to leave. Legal counsel refused, and as a result, the interviews did not proceed.
OHS then sent letters requesting interviews with four individuals alone (the two employees and two managers). Legal counsel responded that his clients were prepared to be interviewed but only if he was present, asserting that the Canadian Charter of Rights and Freedoms (Charter)afforded employees the right to have counsel present during any interview with an OHS officer. OHS then issued orders under the Occupational Health and Safety Act, requiring each of the four individuals to attend a video interview, to which their legal counsel again objected. The interviews did not take place.
The officer issued an administrative penalty of CA$5,000 against the employer and administrative penalties of CA$1,000 against each of the four employees who would not participate in an interview.
The appellants appealed the administrative penalties to the Alberta Labour Relations Board, which dismissed the appeal. They then filed a judicial review application in the Alberta Court of King’s Bench, which was also dismissed and finally they appealed to the Alberta Court of Appeal, where their appeal was again dismissed.
The officer’s requirement that the four employees submit to an interview was based on what was then section 53(2) of the Alberta Occupational Health and Safety Act, SA 2017, c. O-2.1:
“Every person present when an injury or incident occurred or who has information relating to the injury or incident shall, on the request of an officer, provide to the officer any information respecting the injury or incident that the officer requests.”
The current Alberta Occupational Health and Safety Act, S.A. 2020, c. O-2.2, contains substantially the same provision at section 36(2). [1]
In 2005, a previous case, Ebsworth v Alberta (Human Resources and Employment), 2005 ABQB 976 (Ebsworth), addressed whether legal counsel could be excluded from interviews with Occupational Health and Safety officers. In that case, the court ruled that Workplace Health and Safety (now called Occupational Health and Safety) had the jurisdiction to govern its own procedures and also to exclude the presence of legal counsel.
The Alberta Court of Appeal has now confirmed that the Ebsworth case is still good law and has never been overruled by the Alberta Court of Appeal. The Court of Appeal was not persuaded that requiring a person to submit to an interview with an officer pursuant to the provisions of the Occupational Health and Safety Act, without legal counsel present, contravenes the Charter.
If you have any questions or need more information or if your company experiences a workplace incident that must be reported to Alberta Occupational Health and Safety, contact Tari Hiebert or Dan Stachnik for legal advice and assistance customized to your workplace, industry and personnel.
For further information on OHS investigations, please see our previous article “Can my lawyer attend my Occupational Health and Safety interview? Dos and don’ts for Alberta employers navigating OHS investigations.”
[1] “Every person present when an injury or incident occurred or who has information relating to the injury, illness or incident shall, on the request of an officer, provide to the officer any information respecting the injury, illness or incident that the officer requests.”
