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Employees Have Right to Remain Silent - Sometimes

In the unionized employment context there is a recognized right to remain silent when asked to participate in an investigation by the employer.   As two B.C. Ferries employees have discovered, however, that right is not without exceptions.
 
The two employees, Lilgert and Hilton, were the crew members primarily responsible for navigating the Queen of the North ferry the night in 2006 when it sank in Wright Sound. As a result of that tragic accident, B.C. Ferries launched an inquiry for the purpose of determining the cause and issuing a public report.
 
When B.C. Ferries sought to question Lilgert and Hilton about the events leading to the accident, they refused to co-operate. On the advice of legal counsel, they refused to answer any questions relating to the critical period from the ship’s entry to the waters approaching Gil Island until the time of its impact and grounding.
 
Their reason for not wanting to answer questions was the fact that the R.C.M.P. was also investigating the incident with a view towards laying charges for criminal negligence. Put simply, the employees’ motivation in refusing to answer questions was a desire to avoid possibly incriminating themselves.
 
B.C. Ferries suspended Lilgert and Hilton, stating that their “continued refusal to co-operate is considered serious misconduct that can have an extremely adverse impact” on its business interests. The B.C. Ferry and Marine Workers’ Union grieved the suspensions. 
 
A labour arbitrator dismissed the grievances, stating that the employees’ claimed right to remain silent was outweighed by B.C. Ferries’ “legitimate entitlement to have all available information about what occurred during the time of the vessel’s voyage”.
 
So, what happened to the right to remain silent? It is important to distinguish, at the outset, between the right to remain silent in the criminal law and employment law contexts. 
 
Most of us know of the phrase, “you have the right to remain silent…” from watching police dramas on television. That is because the right to remain silent, enshrined in Canada’s Charter of Rights and Freedoms, mostly arises in the criminal law context. Because the Charter serves only to restrict the activities of government, not private entities, it doesn’t apply in most employment settings.
 
There has grown up over time a limited common law right to remain silent in the unionized work context. In B.C., it has been stated that “the failure to explain, without more, simply cannot be regarded as culpable behaviour”. That’s lawyer-talk for the general premise that a unionized employee should not be disciplined for refusing to co-operate with an employer’s investigation.
 
That right is, as I have said, limited. Some exceptions to the right to remain silent include situations in which the employee deliberately attempts to mislead the employer or when the employee’s silence could damage the legitimate business interests of the employer.
 
In the case of Lilgert and Hilton, it was decided by the arbitrator, the B.C. Labour Relations Board, and ultimately the B.C. Supreme Court that their situation fell within one of the exceptions. 
 
As put by the Supreme Court, these circumstances were “extraordinary”. “A ferry carrying members of the public grounded and sank in waters routinely traveled by vessels of the Company. Two passengers lost their lives. The evacuation of the remaining passengers and crew was harrowing. The vessel could not be recovered. In the circumstances, the Company had an obligation to account for the tragedy to the public as quickly as possible. It required the co-operation of the crew members – and, in particular, the navigational crew – to fulfill that expectation.”
 
The Supreme Court concluded its reasons, in upholding the suspension of Lilgert and Hilton, by stating that “the public had a significant interest in knowing the cause of the accident and the remedial steps posed by the Company to ensure such an accident did not occur again.” In such serious circumstances, employees would do well to co-operate with their employer (unless they are prepared to live with the employer’s disciplinary response).
 
 
 
 
 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to