Is legal counsel a charter right in OHS interviews?

Alberta Court of Appeal decided that the Alberta Labour Relations Board (ALRB) was justified in levying administrative fines against four employees and their employer, who refused to speak with an Occupational Health and Safety officer without their lawyer present.

The officer was conducting an investigation into the cause of the on-site vehicle accident that killed a Volker Stevin Contracting (VSC) utility employee in 2019. The employee – a 38-year-old man who had immigrated to Canada from Israel in 2017 and was married with four children, some of whom he had brought to Canada only weeks before the accident – had been inspecting storm catchment drains at a construction site when his supervisor, another employee of Volker Stevin, struck and killed him with a Ford F-550 truck.

The supervisor had been positioning the truck to use as a “shield” to protect the site, the court heard. The employee and the supervisor were the only two employees present on the site.

Is legal counsel a charter right in OHS investigations?

A major question this decision sought to answer was, did the ALRB violate the employees’ charter rights by not allowing legal presence to attend interviews.

Contrary to what VSC’s counsel was alleging, the court affirmed that in fact legal counsel during investigative interviews is not a charter right.

“Even in criminal cases where the jeopardy is higher, there is no right to have counsel present during police questioning,” said Dr. Rick Brick, associate executive professor of strategy, entrepreneurship and management at the Alberta School of Business.

Alberta’s Occupational Health and Safety Act (OHSA) grants OHS officers the authority to conduct investigations into incidents as they see fit, he adds.

“It requires people identified to actually participate in the investigation. It gives them assurance that their participation can't result in self incrimination, and there is no principle that when you're being questioned in Canada, you somehow automatically enjoy the right of having legal counsel there to advise you during the questioning,” says Brick.

“They felt that the employees really had an obligation as employees of the organization who might be able to provide some illumination as to what actually happened in regard to the accident, they had an obligation to be forthcoming, to meet with the inspector, to provide as much information as they could so that [the Albertan public] could be assured that these kinds of accidents would be hopefully prevented in the future.”

Inspection powers vs investigation powers

Beginning in January 2020, the OHS repeatedly requested interviews with four VSC employees who were involved with the accident: the supervisor who was the driver of the truck, the safety manager, the safety representative, and the general manager.

The OHS was repeatedly denied access to these employees by VSC’s legal counsel, who insisted the OHS did not have the authority to either compel employees to attend interviews, or to refuse to allow legal counsel to be present.

David Reiter, partner at Aird Berlis in Toronto, explains that the question of if an employee has a right to a lawyer in OHS investigations comes down to the purpose of the interviews being conducted.

“There’s a difference between inspection powers and investigation powers. I have the right to inspect because I'm dealing with workplace safety and people's jeopardy is not necessarily right in focus. But if I'm investigating, I may not have the right to compel information,” Reiter says.

“An inspection takes place when you are doing your routine inspections, but you haven't determined yet if somebody is likely guilty of an offense … is the predominant purpose of the inquiry to determine someone's penal liability? If it is, then you're in an investigation, and then maybe protections start coming in.”

Diminutive right of immunity

Another factor the courts used to determine if the fines for the employees were justified was the right to diminutive immunity, outlined in the OHSA, which applies when an individual is being compelled to give a statement to avoid fines or charges, meaning that anything said during the course of an interview can not be used beyond the purpose of the OHS investigation, Reiter explains.

This right of immunity comes into play in regulated fields, he adds, where an individual’s participation may be a matter of public safety or otherwise in the best interest of society, the organization or other workers.

This doesn’t mean that an employee being interviewed by an OHS officer is not permitted to speak to a lawyer before, after, even during that interview, Brick points out. But it shouldn’t be disruptive to the investigation.

“The actual investigation isn't meant to be a legal process, and therefore having people with a legal specialty there, perhaps objecting to certain questions because they're not health and safety experts, could easily cause employees to be less than fully forthcoming,” Brick says.

“Perhaps it could take away from the whole purpose of the investigation, which is to try and ensure that we have a safe workplace going forward.”

Shared responsibility model of health and safety in workplaces

Brick shares that employers and HR should focus on the “shared responsibility” model of health and safety, which places the onus for keep workplaces safe on all parties involved.

“OHS legislation in Canada basically is structured so that everybody in a workplace, whether they are the employer, the union or an individual employee, have a responsibility to work towards the workplace being safe,” he says, adding that an employer does usually possess more authority than employees and therefore “carries a lot of the responsibility … even the people who are maybe coming in temporarily as contractors or suppliers, we all have a responsibility for the safe operation of the facility.”

The ALRB originally fined VSC $400,000 plus 20% victim fine surcharge for failing to ensure the health and safety of a worker and allowing a worker to remain within range of moving equipment.

The driver of the truck was fined $66,000 in total for not ensuring the worker’s safety and exposing him to danger from moving equipment.

VSC was fined an additional $5,000 administrative fine for refusing to participate in the OHS interviews, and each employee was fined $1,000 – penalties which the Court of King’s Bench of Alberta and now the Court of Appeal of Alberta have both upheld.

“Safety is not an issue that is owned just by the employer,” says Brick. “There is this mutual responsibility for safety, everybody has that, and this is part of that obligation, that under the legislation there is the ability for investigators to come in on a fact finding, to try and determine what happened, how it can be avoided, and employees have an obligation to provide whatever information they have.”