Date: 20120316
Docket: T-1494-11
Citation: 2012 FC 321
Ottawa, Ontario, March 16,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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TOTAL OILFIELD RENTALS LIMITED
PARTNERSHIP INC
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Respondent
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REASONS FOR ORDER AND
ORDER
1.
There
are two separate motions before this Court related to this application for
judicial review;
2.
The
Applicant, the Attorney General of Canada (Canada), brings forth a first motion
pursuant to Rule 369 of the Federal Court Rules (SOR/98-106), to set
aside on limited consent the decision rendered on August 16, 2011, by Mr.
Jean-Pierre Aubre, an Appeals Officer of the Occupational Health and Safety
Tribunal of Canada concerning the appeal under subsection 146(1) of the
directions issued by Health and safety Officers Dawn Mac Leod and Lisa Pan. The
Respondent, Total Oilfield Rentals Limited Partnership Inc (Total), agrees with
Canada on this first motion that the decision must be set aside and returned
to the Occupational Health and Safety Tribunal of Canada (the Tribunal), because
it was made without the proper notice being given as provided for by section 57
of the Federal Courts Act ( RSC 1985, c F-7 as modified), but leaves the
matter to the Court to decide whether it should be returned to a different
Appeals Officer as requested by Canada;
3.
Total
has also filed a motion pursuant to Rule 369 of the Federal Court Rules (SOR/98-106),
staying the referral of this matter back to an Appeals Officer of the Tribunal
until a decision is rendered in an application brought by Total in the Court of
Queen’s Bench of Alberta for a determination of whether Total is subject to
federal or provincial regulation based on its position that it is a provincial
undertaking to which provincial legislation applies;
4.
Canada
disputes this second motion for a stay arguing that the appropriate two prong
test for a stay as set out in Tractor Supply Co. of Texas, LP v TSC Stores
L.P., 2010 FC 883, [Tractor Supply], affirmed by the Federal Court
of Appeal in 2011 FCA 46, is not met ;
5.
UPON
CONSIDERATION of Canada’s motion record dated February 3rd,
2012, in which it is submitted that Mr. Jean-Pierre Aubre’s decision is also
defective as there was a failure of procedural fairness in that HSO was not
advised that the Appeals Officer was considering whether Total was within
federal jurisdiction, and thus no representations were made by HSO on that
issue;
6.
AND
UPON CONSIDERATION of Total’s motion record dated February 15th,
2012, in which it is submitted that there is no compelling reason why the
matter should be referred back to a new Appeals officer because there has been
no failure of procedural fairness, natural justice nor is there a reasonable
presumption of bias;
7.
And
more importantly it is also submitted by Total that any reference back to the
Tribunal be stayed pending forthcoming proceedings in the Court of Queen’s
Bench of Alberta because the
continuation of the action will cause prejudice to Total and that a stay would
not prejudice Canada.
THE COURT finds that
in view of the fact that the Appeals Officer’s decision was defective not only
because it failed to comply with section 57of the Federal Courts Act but
also because the HSO was not provided the opportunity to make full
representations on the issue of jurisdiction it is preferable that the matter
be referred back to a different Appeals Officer.
THE COURT
ALSO FINDS
that Total does not meet the two prong test established in Tractor Supply
(cited above). This Court is not convinced from the evidence adduced that Total
will be prejudiced; it may be inconvenienced in that there will be a
duplication of proceedings and costs associated therewith but this does not
constitute a prejudice as defined by the jurisprudence. Since the ruling sought
from the Court of Queen’s Bench of Alberta does not rest on the same factual
basis as the matter before the Tribunal, Canada could be prejudiced if a stay
is granted. Furthermore the doctrine of exhaustion warrants that the process
before the Tribunal be exhausted before any intervention from the courts (Rf Canada (Border
Services Agency) v CB Powell Limited, 2010 FCA 61 at page
12). Therefore the stay will not be granted.
ORDER
THIS COURT
ORDERS THAT
1.
The
decision of Appeals Officer Aubre, dated August 16th, 2011, is set
aside and the matter is returned for re-determination by a different Appeals
Officer of the Tribunal.
2.
The
Respondent Total’s motion for a stay of the referral pending the outcome of the
proceedings before the Court of Queen’s Bench of Alberta is
dismissed.
The whole without costs.
“André
F. J. Scott”