Do I Have the Right To Have My Lawyer Present When Being Interviewed by OHS Officers?
A recent decision by the Alberta Labour Relations Board, File No. OHS2020-17 (Volker Stevin case), upholds a regulatory procedure in Alberta prohibiting legal counsel from being present during an interview compelled by Occupational Health and Safety Officers (OHS Officers) investigating a serious workplace incident.
The Alberta Occupational Health and Safety Act (OHS Act) authorizes OHS Officers to request information about a serious workplace incident from anyone who was present at the scene or who has information relating to the incident. Under the OHS Act, a person is statutorily obligated to provide the information to the OHS Officer when asked, and to tell the truth. It is an offence under the OHS Act to refuse to provide the information requested by an OHS Officer, or to knowingly give false information to that OHS Officer. The potential penalties for refusing to provide the information or for lying are serious and can include an administrative penalty up to $10,000, or if a formal prosecution is commenced, a fine and/or incarceration for up to six months.
The Alberta OHS Regulator has, for many years now, interpreted this legislation to mean an OHS Officer can compel a person to submit to a formal interview in the absence of legal counsel where the questions and answers are audio-recorded. A transcript of the interview is usually prepared of the interview, and in serious cases, a copy of the transcript is part of the package sent to the Crown Prosecutor’s Office for the purposes of determining whether charges should be laid. If charges are laid, a copy of the transcript is also disclosed to the defendants. There is little choice in the matter for the interviewee. The person must submit to an interview when requested, the questions asked must be answered truthfully, and it is a separate offence on pain of jail to refuse or lie to the OHS Officer. It is also an offence to hinder or interfere with an OHS Officer exercising this duty under the OHS Act.
Some view this interpretation as harsh because it strips away the interviewee’s right to remain silent and to not self-incriminate, both fundamental rights under the Charter of Rights and Freedoms and long established in Canadian criminal law. The balancing factor often cited in support of this legislation is that the statement taken by the OHS Officer is inadmissible for any purpose at trial, public fatality inquiry or other proceeding, and therefore, the statement cannot be used as evidence to incriminate its maker. This type of legislation is known as a “limited use immunity” clause, and it is not unique to Alberta or to OHS law.
In 2004, OHS Officers in Alberta started excluding lawyers from the interview room even if the lawyer represented the person being interviewed by OHS Officers. This procedure was challenged in 2005 in the case of Ebsworth v Alberta (Human Resources and Employment). In that case, the Alberta Court of King's Bench upheld the procedure of excluding lawyers from the interview room, even though the Court noted it may be desirable, or even advantageous, to permit legal counsel to be present for the interview. An appeal was made to the higher court, the Alberta Court of Appeal, but the appeal was never argued because the matter had become moot when the Crown did not charge Mr. Ebsworth or his employer, and the two-year limitation period expired. That is, by the time the case reached the Alberta Court of Appeal, the matter had become moot because there was no longer any risk to Mr. Ebsworth. The Alberta Court of Appeal declined to hear the appeal in the absence of any live issue before the Court, as is entirely within their discretion.
Accordingly, there is some debate whether the precedent in Ebsworth of excluding legal counsel during questioning by OHS Officers is good law in Alberta. For one thing, an appeal was commenced in that case but never completed because of mootness, and as such the higher court has not spoken on the issue. Further, the governing provision under the OHS Act was amended in 2017 to expand the “limited use immunity” clause, such that statements compelled by OHS Officers can now be used at trial to contradict the witness for the purpose of challenging the credibility of the witness. Whether this statutory revision is enough to overturn the precedent in Ebsworth remains to be seen. Regardless, there are good reasons to approach the precedent in Ebsworth with some caution.
The procedure of excluding legal counsel during questioning by OHS Officers has largely been unchallenged in Alberta since the Ebsworth case. That changed recently in the Volker Stevin case. In the that case, OHS Officers requested interviews from four employees arising from a workplace fatality in 2019. The four employees refused to submit to an interview with OHS Officers in the absence of their legal counsel (who also represented the employer). As a result of the refusal to respond to the questions in the absence of legal counsel, the OHS Officer, relying on the Ebsworth case, after much to and froing, eventually imposed an administrative penalty of $5000 against the employer under s. 54 of the OHS Act for interfering with or hindering an OHS Officer executing a duty under the OHS Act; and imposed an administrative penalty of $1000 against each of the employees for breaching s. 53(2) of the OHS Act for refusing to provide information relating to the accident requested by an OHS Officer.
The employer and the four employees appealed the administrative penalties to the Alberta Labour Relations Board (ALRB) and all five appeals were heard at the same time. Several common grounds of appeal were advanced before the ALRB including: challenging the factual findings of the OHS Officer; challenging the constitutionality of the provisions for assessing the administrative penalties; and challenging whether the precedent in the Ebsworth case was good law. The ALRB dismissed the appeals and confirmed the administrative penalties were appropriate in the circumstances. In so doing, the ALRB declined to hear the constitutional challenge because proper notice of the challenge had not been given. The ALRB also rejected the factual challenges and the argument that the Ebsworth case was moot. The ALRB noted that no authority was presented that diminished the precedential value of the Ebsworth case notwithstanding the Alberta Court of Appeal refused to hear the appeal on the basis it was moot. Further, the ALRB noted that the appellants were unable to provide any case law contradicting the principle in Ebsworth. Accordingly, the ALRB found the OHS Officer acted reasonably in relying upon the Ebsworth case and imposing the administrative penalties. The appellants in the Volker Stevin case have commenced a judicial review of the ALRB decision. Stay tuned. More to come.