2010-OHSTC-005

OHSTC-10-005

Citation: Boone v. Air Canada, 2010 OHSTC 005

Date: 2010-03-24

Case No.: 2008-25

Rendered at: Ottawa

Between:

James Boone, Appellant

-and-

Air Canada, Respondent

Matter: Appeal against a decision rendered by a health and safety officer under paragraph 129.(7) of the Canada Labour Code

Decision: The decision is rescinded and a direction is issued

Decision rendered by: Mr.Michael Wiwchar, Appeals Officer

Decision language: English

For the Applicant: Mr. Prescott Franco, International Association of Machinists and Aerospace Worker

For the Respondent: Mr. David Wong, Counsel, Fasken Martineau DuMoulin LLP

Reasons

[1] This is an appeal brought under ss. 129.(7) of the Canada Labour Code (the Code), by Mr. James Boone, employee with Air Canada, regarding a verbal decision of no danger rendered by Ms. Dawn MacLeod, health and safety officer (HSO), on August 20, 2008, and confirmed in writing on August 21, 2008, pursuant to ss. 129.(4) of the Code. A hearing was held at Leduc, Alberta, on June 23 and 24, 2009.

Background

[2] On August 20, 2008, Mr. Boone exercised his right to refuse dangerous work at his work place located at the Edmonton International Airport (Edmonton airport), Leduc, Alberta. Mr. Boone’s refusal was related to health and safety concerns, which he believed to be a danger, following a request made by his employer to perform a task within the scope of his duties as a station attendant.

[3] The task entailed servicing aircraft lavatories (lavs) that is performed by an employee during each shift using equipment known as a lav truck. The lav truck would be positioned near the aircraft then from the rear-servicing platform the employee would hook up hoses between the aircraft and the truck. The lav contents, consisting of human waste and other possible unknown substances, are emptied into the lav truck’s storage tank.

[4] Mr. Boone expressed his concerns in a letter to the employer dated May 15, 2008, which was also the last time he performed the task prior to his refusal. According to
Mr. Boone, the purpose of the letter was to bring to the employer’s attention the health and safety risks associated with and the conditions related to servicing aircraft lavs that could affect him, other employees or the traveling public.

[5] The specific hazard concerning Mr. Boone during the task was the possible exposure to lav waste and its contents. As well, he had concerns about issues relating to procedures while the substance is transferred from the aircraft into the lav truck.

[6] The concerns and issues raised in the letter are summarized below:

  • the need for a designated lav station attendant using proper protective gear and safety equipment;
  • the unkempt condition of the lav truck (inside and outside);
  • the lift system of the lav truck had been unserviceable since December 2007;
  • the storage and disposal practices of rubber gloves within the vehicle;
  • the risk of cross-contamination between employees performing lav service and other employees or the public;
  • the end of a hose that discharged the waste during the process was covered with duct tape.

[7] On August 20, 2008, HSO MacLeod went to the work place in response to
Mr. Boone’s refusal to work; she was accompanied by a colleague. At that time, the HSO received Mr. Boone’s description of the circumstances about the perceived danger, which included the letter containing the concerns stated above and other related details concerning the task.

[8] HSO MacLeod received the employer’s position, which was that a danger did not exist while performing this task because the employer has provided proper - personal protective equipment (PPE). The employer representatives stated to the HSO that all that was necessary to protect the employee from the risk of exposure was performed and that they followed their policy for the handling of biological material.

[9] On August 20, 2008, HSO MacLeod rendered her decision that a danger did not exist. The HSO provided the reasons for her decision in a report that forms part of the record of this case.

Issue

[10] The issue in this case is whether HSO MacLeod erred in concluding that a danger did not exist for Mr. Boone in the performance of a task known as servicing aircraft lavs.

Evidence

[11] The appellant’s case consisted of the testimony of Mr. Boone and from one witness, an Air Canada employee that occupied the position of health and safety officer with the International Association of Machinists and Aerospace Workers (Union HSO).

[12] The respondent’s case consisted of the testimony from three witnesses; the Air Canada process and procedures manager (P&P Manager), the Air Canada manager of safety and security services (S&SS Manager) and the Air Canada manager of station operations, Edmonton airport (SO Manager).

[13] Listed below are facts established by HSO MacLeod as written in her report, which I summarize as follows:

  • Mr. Boone performed the duties of a station attendant and he has over twenty-three years continuous industry experience and ten years experience as a station attendant with Air Canada;
  • Mr. Boone wrote a letter outlining his concerns regarding the lav truck servicing task which was forwarded to the employer on May 15, 2008; a list of one hundred names on a petition was attached;
  • the employer did not see any danger associated with this work activity as they supply PPE and follow company policy about handling biological material (copies of the policies were provided);
  • the task of lav servicing has not changed in over twenty years however, the assignment of this duty has changed; it is no longer assigned to one employee per shift; it is presently a shared responsibility of the crew station attendants; this practice has been in effect for the past five years;
  • the task occurs on average ten to thirteen times per shift, depending on aircraft movement – inbound and outbound;
  • the transformation over the past five or six years may have occurred as a result of decreased staffing levels, whereby the responsibility to perform the task is now shared amongst the crew;
  • each crew is made up of four positions: ground position, bridge position, driver, lead station hand;
  • there are two lav trucks located and the Edmonton airport;
  • a service tag indicating required repair of a man-lift on the lav truck was attached to the dash, it was dated December 2007;
  • one hose used to transfer waste material had duct tape on the end;
  • during the investigation on August 20, 2008, general ground activities were observed by HSO MacLeod and her colleague; it was noted by the HSO that the employee performing the task was not wearing disposable coveralls or a face shield;
  • PPE such as face shield, gloves and disposable coveralls are provided, but use is not mandatory;
  • lead station attendants must complete an appropriate exam that is specific to aircraft cargo handling as referenced in the collective agreement.

[14] Included in HSO MacLeod’s report is a copy of meeting minutes from the work place health and safety committee dated June 30, 2008. The meeting was co-chaired by an employer representative and the Union HSO, acting co-chairperson, for the employees. The minutes read as follows:

Discussion Items

Concerns with lavatory servicing

Staff have expressed concerns about the exposure to bio-hazardous material when servicing aircraft lav systems and related equipment.

Current Air Canada policy requires that people servicing lavatories or trucks, employ the following universal precautions:

  • Either dedicated coveralls or disposable coveralls are to be worn to protect from drips or spills. The coveralls are to be worn only when servicing, and never in areas that would expose other workers. They are intended to be re-used until contaminated.
  • Face shield provides protection from splashes
  • N95 de-ice type respirator protects against inhalation exposure
  • Latex gloves (as used when cabining the aircraft) protects hands
  • Heavy nitrile outer gloves protects the latex gloves. These are not disposable, and must be washed with a disinfectant when contaminated.

[15] Included in HSO MacLeod’s report is a copy of an employer policy titled “Pubs 70, Chap 15, Page 4, 08 01 29, Lavatory Servicing”, in relation to PPE which stated the following:

3 - Servicing the Lavatory System

.01 Servicing Precautions & General Rules – Lavatory Servicing

[…] 8 Along with the standard PPE, the following PPE will be made available when servicing the lavs on all aircraft by ACGHS.

  • approved face shield
  • approved gloves
  • approved disposable coveralls

[16] Included in HSO MacLeod’s report is a copy of an employer policy titled “Pub. 5, Corporate Safety Manual, Chap. 14 – Hazardous Material Management”, pages 38, 39 and 40, dated 06/01/20, which stated the following:

14.6 Handling of Biological Material – Universal Precautions

.01 Purpose

Due to the fact that the infectivity of any human blood or blood contaminated bodily fluid cannot be known, any handling of such material must conform to the “Universal Precautions” as referenced by the Centers of Disease Control (CDC). Universal Precautions does not apply to feces, nasal secretions, sputum/saliva, sweat, tears, urine and vomit.

.02 Standard

The proper personal protective equipment must be used for all biohazard material handling, which is dictated as per the work process and the relative degree of risk. The personal protective equipment to be used in biohazard material handling is as follows:

  1. The use of disposable nitrile gloves when handling the material during light processes. The gloves must be intact and disposed of after the work process.
  2. The use of nitrile gloves when handling the material during heavy processes. The gloves must be intact and washed with 0.5% hypochlorite/water solution after the work process if contaminated.
  3. In case of splashing risk, safety goggles, face shields and protective coats or coveralls must be worn. The equipment must be intact and washed with a 0.5% hypochlorite/water solution after the work process if contaminated. If biohazardous fluid is splashed into eyes, rinse the eyes at eye wash station for 10 minutes or use a portable eye wash bottle.
  4. In case of a spill risk, rubber boots must be worn. The boots must be intact and washed with 0.5% hypochlorite/water solution after the work process if contaminated.
  5. In case of mist inhalation risk, a disposable HEPA mist mask must be worn. The mask must be intact and disposed of after the work process. It may be stored in a safe place if not contaminated.
    If further respiratory protection is required, a half face or full face respirator may be used coupled with multipurpose/P-100 HEPA filter cartridges.
  6. If clothing becomes contaminated in any way, it should be removed of and disposed accordingly. All skin contamination must be thoroughly washed with soap and water immediately.
  7. The type of personal protective equipment to be used is dictated by the type of servicing assignment and degree of risk associated.

Appellant’s evidence

[17] Mr. Boone testified that his manager sent him home on the day of the refusal because he invoked his right to refuse work, which he believed went against the Code. He said during cross-examination that the employer neither took disciplinary action nor did they deduct his pay.

[18] Mr. Boone said that the reasons for his refusal to work specifically related to the dire condition of the PPE and the state of the vehicle on the day of his refusal. He believed the task of servicing aircraft lavs that the employer requested him to do that day was unsafe. He believed that at the time of the refusal, as well as in the past, the employer had not provided coveralls, appropriate face protection or properly maintained gloves. He believed that the mentioned PPE were required in order to protect him against an exposure to the waste contents of the lav in the course of his duties.

[19] Mr. Boone presented photographs during his testimony that he had taken after the date of the refusal that depicted the conditions that in his view were indicative of daily activity when employees performed the function of servicing aircraft lavs. Some photographs depicted lav waste outside the truck’s storage pan that is located above the truck’s tank. Other photos depicted what he considered to be improvised venting/overflow modifications located in truck’s storage pan, which Mr. Boone believed was a cause for the presence of the waste in that location. As well, other photos depicted waste discharge hoses that he described had lav waste on them.

[20] Mr. Boone testified that he has performed the task over the past five years approximately one hundred times. He has never suffered injury or illness due to being exposed to lav waste. He was aware of one injury or illness to an individual that was exposed to lav waste, the injury or illness was through the eye which may have been caused by a splash however it was not a recorded case.

[21] Mr. Boone acknowledged during cross-examination that disposable latex gloves and a face shield were in the vehicle on the day of his refusal. However, he stated that the face shield was the property of another company therefore; the employer did not provide it. Irrespective of that fact, he believed that the face shield was in his opinion filthy and had waste on it therefore, he would have refused to wear it.

[22] The Union HSO testified that his duties involved coaching, counselling and observing employees while at work on health and safety matters and to participate in related investigations. He has a certificate in occupational health and safety from the University of Alberta and has also completed other safety related courses. He participated in a risk assessment related to servicing aircraft lavs that was conducted following a direction issued to the employer by HSO MacLeod after the work refusal.

[23] The Union HSO’s opinion is that the hazard to Mr. Boone, in the circumstances, involved the exposure to untreated human waste from aircraft lavs. In his view the lav waste may contain infectious biohazard material that would not be visible to the naked eye. He said that the employer subsidized vaccinations/shots for hepatitis “A” and tetanus for employees. He believed this demonstrated the employer recognized that such hazards and related illnesses existed.

[24] The Union HSO said that the risk of contracting these illnesses or conditions were mitigated by protecting the routes of entry that the lav waste may enter into the human body, i.e. by direct oral ingestion, from hand to mouth, by absorption through the mucus membranes of the eyes or nose, dermal through cuts or through rashes and contusions. He said, based on his occupational health and safety knowledge, that the health effects that are related to untreated human waste included tetanus, parasitic worms, hepatitis “A”, protozoan parasites and bacteria in the family of E. coli. He said that since the hazard cannot be controlled by engineering measures then PPE is the required method to protect employees.

[25] The Union HSO prioritized the use of PPE in the following order:

  • the face masks/shields to reduce exposure to ingestion;
  • impervious coveralls to reduce exposure through cuts or rashes;
  • latex disposable gloves to be used to reduce exposure to cuts on hands;
  • second pair of over gloves for additional protection;
  • requirement for vaccines/shots;
  • hygiene practices such as washing hands.

[26] The Union HSO stated that in the many years he has worked in the industry he has witnessed numerous employees that came into contact with lav waste during various circumstances. He went on to testify that the majority of employees, while conducting the task at issue, would come into direct contact with lav waste at least one time in their career.

[27] The Union HSO said that to date, no one has suffered an injury or illness from an exposure to lav waste. Nevertheless, in his opinion, there is an existing risk and the employer’s policy reflected that. He said that since the possibility of infectious biohazard material exists in lav waste, then a complete set of PPE was required to be used by employees.

[28] During cross-examination by Mr. Wong, the Union HSO said that he participated in the risk assessment process with employer representatives and all together they analysed the lav servicing task step by step; it was a collaborative effort and everyone agreed with the content and conclusions. He agreed that the report indicated that the risk for every step was categorized consistently as “D” which is the lowest risk that can be assigned. He agreed that the report indicated, about mitigation measures, that the employee must be positioned upwind and out of the spill zone, which was to provide protection should material escape for whatever reason. He agreed that the employee must be donned with rubberized gloves. He agreed that these were the only mitigating measures mentioned in the report under this category for approximately fifty steps within the task.

[29] The Union HSO, during cross-examination, was requested to read an excerpt from the hazard assessment report under the column titled “Process” which stated the following for one of the required steps in the performance the task:

“Operator hooks up the detergent flush/fill hose. (Risk – Detergent line could have residual fluid still contained in the flush/fill hose and this residual fluid could be splashed into the operator’s eyes).”

[30] The Union HSO admitted that he may have agreed at the time with the mitigation measure stated in the hazard assessment report about PPE i.e. gloves. However, the Union HSO’s present opinion is that this was an omission by him and the others in that, given the possible hazard and potential of a splash to the eyes, an additional mitigation measure would be to provide and use eye protection.

Respondent’s evidence

[31] The P&P Manager entered a report into evidence dated November 2008, which was produced after a direction issued by HSO MacLeod to the employer on August 20, 2008. The report was prepared by the S&SS Manager and the P&P Manager and was titled “Risk Assessment: Aircraft Lavatory Servicing – YEG” (the report). The purpose of the report was to identify and assess the hazards relating to lav servicing at the Edmonton airport. The P&P Manager and others, including station representatives and the Union HSO, carried this out on September 16, 2008. The assessment included an analysis of the type of PPE used by employees in relation to how the lav servicing task is performed.

[32] The report, under the title “Discussion”, provided an assessment of the hazard and the risk associated with lav waste. The comments in the report are from the employer’s manager of industrial hygiene, a certified industrial hygienist, which reads as follows:

“Typically, the handling of traditional lavatory wastes (ie. urine, feces, vomit, etc.) would not even require the use of Universal Precautions methodology. However, since we cannot guarantee that such wastes are not contaminated with blood, AC has implemented Universal Precaution procedures for the handling of lavs (specific procedures as well as the appropriate PPE) – these can be reviewed in Pub 5.

As far as the risk goes, it is possible that such wastes may carry viral, bacterial or parasitic biohazards (especially if the users of the lavs are infectious with a specific medical condition), however, exposure to these would be quite minimal from a common splash or spill since a significant exposure route would be required (ie. exposure to copious amount through cuts in skin, ingestion, inhalation or through the eyes)”

[33] Another assessment was provided in the report under the same title as above from the employer’s chief medical officer that reads as follows:

“[When servicing lavatories] without failure of procedures and PPE, any risk should be low”

[34] The findings of the report established that there were no employer records relating to employee injury or occupational illness due to contamination through ingestion of waste from aircraft lavs. A review of available records at the Edmonton airport revealed two injuries associated with lav operations neither of which resulted in time-lost nor were they related to exposure to lav waste.

[35] The report contained a statement under the title “Conclusion” which reads as follows:

The risk assessment has clearly shown that the main potential hazard involved in the servicing of a/c lavatories involves possible contact with contaminated blood, viral, bacterial and/or parasitic biohazards that may be present in aircraft lavatory fluid.

It is indicated that risk to an employee from this exposure would require “copious amount through cuts in skin, ingestion, inhalation or through they eyes”.

The “process points” in which a spill might occur are identified as:

  • Open the a/c lav servicing panel
  • Handling the lav vehicle “dump” hose
  • From the a/c dump fitting in the event a) there is residual waste fluid behind the fitting cap and b) the dump hose is improperly fitted and breaks free during dumping.

All of these exposures may be successfully minimized with the simple advent of positioning one’s body upwind of and away from possible spill zones.

The exception to this is the possibility of exposure through any cuts/skin openings on one’s hands while actually handling hoses, panels, etc. Rubberized lavatory service gloves are adequate to minimize this risk.

[36] During cross-examination by Mr. Franco, the P&P Manager said that in his opinion, on the day of the refusal it would be expected that employees follow the employer’s “Universal Precautions” policy. In addition, the he was shown photos depicting the lav truck’s storage pan filled with lav waste that had overflowed from the storage tank. He was asked that in such conditions, could there be a risk of an employee being splashed in this circumstance and his response was in the affirmative. However, he went on to say that proper procedures were not followed that allowed the depicted condition and that gloves in his opinion are the only PPE required.

[37] During the same cross-examination by Mr. Franco, the P&P Manager said that, in his opinion, PPE is not optional as per the policies applicable on the day of the refusal. He disagreed with the statement made by the HSO in her report that PPE is not mandatory, i.e. optional.

[38] From the testimonies of the S&SS Manager and the P&P Manager it was explained that the report contained an assessment of the potential risk involved in each step of the task. As set out in the report and as described by P&P Manager, no step in the task was determined to carry a risk greater than “D”, the lowest possible risk rating.

[39] The SO Manager of the Edmonton airport testified that employees at the airport carry out the task around two hundred times a week. In his opinion, this indicates that the task had been performed thousands and thousands of times by employees in Edmonton without anyone reporting an illness from exposure to lav waste.

Submissions

Appellant

[40] Mr. Franco submitted that the employer violateds.147 of the Code because
Mr. Boone was sent home for his work refusal. Mr. Franco requested that the employer be ordered to cease and desist disciplining employees for refusals to work in case of danger.

[41] Mr. Franco maintained that the waste from aircraft lavs may contain blood and therefore may contain a mixture containing infectious biohazards. Furthermore, he submitted that there were no independent tests of lav content for HSO MacLeod to base her findings; the HSO’s decision was not based on evidence or statistical data that supports optional wearing of the proper PPE. The employer had no independent data that supported the position of lav waste being low risk.

[42] Mr. Franco submitted that employees have the right to know what they are handling.

[43] Mr. Franco submitted that the testimony of the Union HSO, where he is quoted as stating that “most station attendants are dumped on once”, indicated that there is a reasonable probability that a station attendant will be exposed to the infectious waste. The exposure level is also supported in HSO MacLeod’s decision where she stated that “there is a reasonable probability that the employee may be exposed to hazardous conditions at least ten to thirteen times per day”.

[44] Mr. Franco submitted that the testimony of the Union HSO, where he described the risk of exposure to infectious waste, is much more severe than the employer has described. He submitted that the Union HSO described the possibility that lav waste may contain diseases, parasites, viruses, and many other infectious substances. He submitted that the Union HSO testified that infectious waste is invisible and he argued that diseases could then be passed to another person that would cause bodily harm.

Respondent

[45] Mr. Wong made the following argument in regards to Mr. Franco’s request that the employer be ordered by Human Resources and Skills Development Canada to cease and desist disciplining employees for refusal to work in case of danger. He submitted firstly, that an appeals officer has no jurisdiction to determine an alleged violation of
s. 147, such complaints are governed by s. 133 of the Code. Secondly, Mr. Boone was not disciplined for his refusal to work.

[46] Mr. Wong submitted that based on Mr. Franco’s submissions, it was clear that the potential hazard at issue was the exposure to lav waste. As a result, it is the respondent’s position, based on the test set out in a decision of the Canada Appeals Office1 (CAO) in Canada (Correctional Service) and Schellenberg 2, and the test set out by the Federal Court in Union of Canadian Correctional Officers v. Canada (Attorney General)3, that the appeal must fail for the three following reasons:

  • there is no reasonable expectation that Mr. Boone will be exposed to lav waste in carrying out the task;
  • there is no reasonable expectation that the exposure to lav waste will cause illness or injury; and
  • Air Canada has not failed, to the extent reasonably practicable, to ensure its employees are personally protected from exposure to lav waste.

[47] Mr. Wong argued that where proper procedures are followed the chance of the employee carrying out the task and being exposed to the lav waste is very small. Specifically, he said, except in the rare circumstances that a spill occurs, that the waste is transferred in a closed system where there is no possibility of exposure to the waste.

[48] Mr. Wong maintained that the risk assessment that included the involvement of the employer and employee representation through the Union HSO included a step by step analysis of the task as set out in the report. The only mitigation measures deemed necessary for the task were as follows:

  • position upwind/out of spill zone;
  • gloves;
  • connect coupling firmly;
  • use guideman if necessary;
  • exercise caution when backing; and
  • exercise caution when placing ramps.

[49] Mr. Wong submitted that the Union HSO was involved in the drafting of the report and at the time agreed with everything contained therein including that the only PPE necessary to mitigate the minimal risks in carrying out the task were gloves.
He submitted that the use of gloves and proper positioning essentially eliminates the risk of exposure to waste in carrying out the task.

[50] Mr. Wong argued that Mr. Boone suggested that he did not have the proper PPE available to him on the day of the refusal. However, he submitted that Mr. Boone did admit that gloves were available to him on the refusal day. Accordingly, he submitted that from Mr. Boone’s own evidence it was clear that the only PPE deemed necessary in the report was available to him on August 20, 2008.

[51] Moreover, Mr. Wong argued that although it was clear from the report that a face shield was not necessary PPE to mitigate the risks of the task; Mr. Boone had available to him a face shield on the day of his refusal.

[52] Mr. Wong submitted that when HSO MacLeod testified that - the employee may be exposed to a hazardous condition at least ten to thirteen times per day; she was referring to hazardous conditions inherent to the work that is being performed on the tarmac in the presence of moving planes.

[53] Mr. Wong submitted that no evidence was presented at the hearing that established that anyone has or is likely to become ill or injured from carrying out the task. He submitted that the only evidence from Mr. Boone in this regard was speculative suggestions and opinion evidence from the Union HSO about the potential for illness transmission through the waste.

[54] Mr. Wong submitted that the evidence presented at the hearing was clear that the only reported or recorded injuries involved carrying out the task were minor injuries neither of which were related to waste exposure nor resulted in time missed from work. He submitted that this was despite the frequency with which this task is carried out at the Edmonton airport by the employer’s staff.

[55] Mr. Wong submitted that based on the CAO decision of appeals officer Cadieux in Welbourne and Canadian Pacific Railway Co.4, the speculative possibility that an illness might occur from carrying out the task is not sufficient grounds to support a finding of “danger” under the Code.

Analysis

[56] I begin with the issue raised by Mr. Franco that the employer violated s. 147 of the Code and his request that I order the employer to cease and desist from disciplining employees for refusals to work in case of danger. This issue is not related to whether or not a danger existed for Mr. Boone at the time of the refusal. Furthermore, it is the jurisdiction of the Canada Industrial Relations Board as stipulated under s. 133 of the Code to inquire into the circumstances of an alleged violation of this nature. Therefore, I have no jurisdiction to give neither the issue nor the request any consideration.

[57] In accordance with ss. 146.1(1) of the Code, I am required to inquire into the circumstances of the decision rendered by HSO MacLeod on August 20, 2008, and the reasons for it. I may confirm her decision that a danger did not exist or if I find that a danger did exist, I may issue a direction under ss. 145(2) or ss. 145(2.1).

[58] I must determine whether a danger existed or not for Mr. Boone in the performance of the task involving servicing aircraft lavs. The term “danger” is defined under ss. 122(1) of the Code which reads as follows:

“danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;

[59] I will concentrate on key elements in the danger definition which will assist me in determining whether or not a danger existed for Mr. Boone. I will ask the following three questions which must all be answered in the affirmative for a danger to have existed:

  • Was there an existing or potential hazard, condition or any current or future activity?
  • Was there a possibility of being exposed to the hazard, condition or activity?
  • Was there a reasonable expectation that an exposure to the hazard, condition or activity would have caused injury or illness to a person exposed to it?

Was there an existing or potential hazard, condition or any current or future activity?

[60] Mr. Boone was requested to service aircraft lavs at the time of his refusal, a task integral to the operation. The task has been performed in the same manner for over twenty years. The one and only change has been to the assignment of the task from one designated person per shift to being a shared responsibility of the crew.

[61] It is my understanding that Mr. Boone’s job on the day of the refusal involved using the lav truck that is positioned near the lav of the aircraft. The content of the lav is emptied and then flushed with detergent through hoses connected between the truck and the aircraft. At the end of the procedure the hoses are disconnected and stored and then the truck is parked until it is required again. This task may happen approximately thirteen times per work shift. At the end of the shift or when the truck tank is full, it is brought to a nearby site where the lav waste is dumped and disposed. The task as I have described it is the activity at issue.

[62] Is lav waste hazardous? Evidence before me on this issue comes from a statement made by the employer’s manager of industrial hygiene, a certified industrial hygienist, in the report identified in paragraph 31.

[63] The report’s origin is from a direction issued to the employer by the HSO after the work refusal. The direction required the employer to conduct a hazard assessment of the activity. The employer complied with the direction and revisited all aspects of the activity relating to lav waste and the associated potential hazards that in turn initiated a revision of the employer’s policies and procedures.

[64] I will give weight to the findings of the report in so far that it is the only information available to me for the purpose of analysis with respect to the activity, the substance and the associated potential hazards.

[65] The manager of industrial hygiene stated in the report that normally, handling common lav waste (i.e. urine, feces, vomit, etc.) would not require universal precautions methodology. The methodology he is referring to is located in the employer’s policy in paragraph 16, for the handling of biological material.

[66] The manager of industrial hygiene went on to say that there is no guarantee that lav waste may not carry viral, bacterial or parasitic biohazards especially if the users of the lavs are infectious because of a specific medical condition. He said that there is no guarantee that lav waste is not contaminated with blood and as such it is possible that lav waste may carry viral, bacterial or parasitic biohazards.

[67] This information tells me that although lav waste may not always be an infectious biological substance, the employer chooses that it be treated as one and that preventative measures equal to the hazard be taken. The manager of industrial hygiene did not specify in his statement what PPE was deemed to be necessary only that it be in accordance with the employer’s procedures located in Pub 5.

[68] As a result, I can deduce from the above that lav waste, being a potentially infectious biological substance, which may carry viral, bacterial or parasitic biohazards, is to be considered hazardous.

[69] Furthermore, I come to the conclusion that in this circumstance lav waste meets the definition of a “hazardous substance” as defined in the Code under ss. 122.(1), which reads as follows:

“hazardous substance” includes a controlled product and a chemical, biological or physical agent that, by reason of a property that the agent possesses, is hazardous to the safety or health of a person exposed to it;

[70] Consequently, I come to the conclusion that a hazard existed at the time Mr. Boone was requested to service aircraft lavs on the day of his refusal.

Was there a possibility of being exposed to the hazard, condition or activity?

[71] I will again refer to the information in the report in order to answer this question. The report provided me with numerous examples where it is possible that employees could be exposed to lav waste in the performance of this activity. From the approximately fifty sub-tasks identified nineteen stated either fluid exposure or fluid splash as the potential hazard. Typically, the comments entered about the sub-tasks by the authors were as follows;

  • the residual fluid could be splashed into the operator’s eyes;
  • detergent fluid could be splashed on operator’s clothing and face;
  • fluid may contact operator’s clothing and face;
  • residual waste fluid may spill onto the operator’s clothing;
  • fluid may splash into operators face;
  • this waste may splash onto the operator;
  • contaminants to splash back onto the operator, etc.

[72] Another piece of evidence that I will give weight to on this question comes from the Union HSO. He testified that, from his experience, most employees had been in direct contact with lav waste in some form or another at least one time in their career.

[73] Based on the information in paragraphs 71 and 72; I disagree with Mr. Wong and the HSO that lav waste was confined inside a closed system thus eliminating the possibility of being exposed to it. Exposure possibilities are clearly explained which demonstrates to me that lav waste can come into contact with employees either during the normal servicing procedure or accidentally. Granted these occasions may be few and far between, nonetheless the possibility of exposure does exist and existed at the time of the refusal.

[74] In addition, the evidence indicated that on the day of Mr. Boone’s refusal the employer had two policies in place which are relevant to being exposed to this hazard. These policies in my opinion were the root of the issue brought forward by Mr. Boone. The first policy was about servicing aircraft lavs and the second was about the handling of biological material. Both policies deal with prevention measures relating to the provision of PPE to employees.

[75] On the one hand, the first policy, about servicing aircraft lavs in paragraph 15, says; that in the performance of this activity an approved face shield, approved gloves and approved disposable coveralls will be made available to employees. This implied to me that the use of PPE during the activity was not mandatory, i.e. optional, for employees to wear or not.

[76] On the other hand, the second policy, about handling biological material known as the “Universal Precautions” in paragraph 16, lists many types of PPE an employee must use where there is a risk of exposure to biohazard material. To me, this implied that it was mandatory, i.e. compulsory, that the employees must use the equipment that the employer has provided.

[77] I am confused by the fact that two policies which are clearly linked to the activity at issue have obvious conflicting procedures on what PPE is to be provided and used by employees. In this case I will need to determine which policy applied.

[78] In the spirit of a de novo inquiry, I must also accept evidence following the refusal that is relevant to the circumstances at the time of the refusal. I explained in paragraphs 63 and 64 that I would give consideration to the report submitted by the employer because it contains relevant information regarding the possible exposures to lav waste on the day of the refusal.

[79] I give weight to the report in that it contained hazard control measures which in turn instigated changes to the employer’s policies and procedures after Mr. Boone’s work refusal. Listed below are some of the control measures the authors stated would be implemented by the employer:

  • daily inspections of the vehicles passenger and engine compartments;
  • education and training (classroom and hands on) related to lav servicing operations and techniques;
  • the provision of PPE;
  • adherence to hazard reporting protocols;
  • assurance of adequate supervision is maintained at the work place;
  • adherence to established hazard reporting protocols.

[80] As well, I give weight to the report from the viewpoint that it contained a corrective action plan that proposed modifications to the standard safe operating procedures for servicing aircraft lavs. Below is a summary of the proposed modifications:

  • ensuring safe positioning during lav servicing that will include such factors as wind and potential spill zones;
  • ensuring employees awareness of the importance of reducing spill potential by snug, complete hose hook-up; and
  • mandating of rubberized lav service gloves (SOL-VEX disposable rubber) as standard PPE when servicing lavs;
  • modifying related policies;
  • monitoring of lav servicing personnel as part of the station’s ongoing hazard prevention program and work place inspections to ensure ongoing viability of the process.

[81] I must determine, while considering all of the above evidence, what PPE would have been required for Mr. Boone in order to protect him from the hazard at the time of his refusal. This will not be easy for me because the employer, following the hazard assessment, made many significant changes to its policies and procedures as itemized above. A major impact of the hazard assessment in relation to PPE is the employer’s determination that disposable rubber gloves are the lone piece of protective equipment to be provided and be made compulsory to use by employees.

[82] Mr. Wong argued that the employer provided Mr. Boone with disposable rubber gloves on the day of the refusal, as per the revised policies and procedures, thus the PPE now required was available. Mr. Wong submitted that as a result, the risk of exposure to lav waste during the activity is essentially eliminated.

[83] I cannot agree with this argument because the compulsory use of gloves was only one component within the corrective action plan for this activity. Other equally important components formed part of the corrective action plan that resulted in amendments to procedures and policies. In addition, new health and safety control measures were integrated into the activity that involved important changes concerning education, training, equipment inspection and maintenance etc. These components were not in practice or implemented at the time of Mr. Boone’s refusal.

[84] The Code under s. 122.2 prescribes the measures an employer must take to prevent an exposure to a hazard. The measures are described in a specific hierarchal order and reads as follows:

122.2 Preventative measures should consist first of the elimination of the hazard, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

[85] It is clear to me that the employer determined that an exposure to lav waste could not be eliminated or reduced to the extent necessary. Therefore, the employer adopted the final measure stated in s. 122.2 that is to provide employees with PPE to protect them from a possible exposure to lav waste. The employer categorized lav waste as a hazardous and infectious biological material so it stands to reason that suitable PPE would be required as protection.

[86] Having considered the evidence, I conclude that the employer’s policy on the handling of biological material, universal precautions, was the policy applicable at the time of Mr. Boone’s refusal. Therefore, at the time of his refusal, Mr. Boone should have been provided with adequate PPE which I believe goes beyond the use of disposal rubber gloves as the one and only piece of protective equipment.

[87] On the day of the refusal, a face shield was in the truck however Mr. Boone testified that it was the property of another company which was not contested by the respondent. Mr. Boone said that regardless of the fact that the face shield was in the truck, it was not wearable because it was not clean or maintained. Therefore, an appropriate face shield was not provided by the employer.

[88] Consequently, I find that the employer did not provide adequate face protection on the day of the refusal.

[89] The respondent did not contest the allegation made by Mr. Boone that a protective coat or coveralls was not available to him on the day of his refusal.

[90] Consequently, I find that an adequate protective body covering was not provided to Mr. Boone on the day of his work refusal.

[91] Based on the evidence, I conclude that Mr. Boone was not provided with adequate PPE in accordance with the employer’s policy that was required to protect him against a possible exposure to lav waste. Therefore, it was possible that Mr. Boone could have been exposed to lav waste on the day of his refusal when he was requested to perform the activity of servicing aircraft lavs.

Was there a reasonable expectation that an exposure to the hazard, condition or activity would have caused injury or illness to a person exposed to it?

[92] I begin my analysis of this question by referring to Justice Gauthier in Juan Verville v. Canada (Correctional Services)5 where she stated in paragraph 51, that there is more than one way to establish that a situation can reasonably be expected to cause injury or illness. A reasonable expectation of injury or illness could be based on expert opinions or even the opinions of ordinary witnesses that have the necessary experience when the witnesses are in a better position than the trier of fact to form the opinion. This could also be established through an inference arising logically or reasonably from known facts.

[93] Furthermore, Justice Gauthier said, in Verville paragraph 35, that to establish a reasonable expectation that an exposure to a hazard, condition, or activity will cause injury or illness, it is not necessary to demonstrate that every time the activity or condition occurs it will cause injury. The French version “susceptible de causer” indicates that it must be capable of causing injury at any time but not necessarily every time.

[94] My review of the evidence should enable me to decide whether Mr. Boone was likely to become injured or ill, at anytime but not necessarily every time, in the course of carrying out the activity that included a possibility of being exposed to lav waste.

[95] The employer’s industrial hygiene manager stated that the potential harm to an employee is minimal because a copious amount of lav waste is required through cuts in the skin, ingestion or through the eyes. It is very difficult for me to assess what he meant by this statement. Did he take into consideration or refer to the criteria mentioned in the Canada Occupational Health and Safety Regulations (the Regulations), under Part 10, specifically under ss. 10.4? Did he write a report as required under ss. 10.5 to explain his findings? If a written report exists it was not entered as evidence. Since he did not appear as a witness to answer these questions, what remains is my own interpretation of his statement.

[96] The Union HSO on the other hand testified that the employer subsidizes vaccinations for hepatitis “A” and tetanus for employees. He believed that this demonstrated a recognition that such hazards and related illnesses existed. His testimony was not challenged by Mr. Wong on this point. As well, based on his knowledge the most important piece of protective equipment to reduce the exposure to lav waste was the face mask/shield.

[97] Given that the evidence has demonstrated to me that there is no guarantee that lav waste may not contain infectious biohazard material, the possibility for employees to come into contact with blood that may carry viral, bacterial or parasitic biohazards while servicing aircraft lavs exists.

[98] Therefore, I believe that because on the day of refusal, Mr. Boone could have been exposed to lav waste and its contents in the performance of this activity, there was also a possibility for him to come in contact with infectious biohazard material.

[99] I would like to now point out that the Federal Court has established in Verville6 that when considering whether a situation can reasonably be expected to cause injury or illness, proof that someone else has been injured or became ill in the same circumstances is not necessary.

[100] Consequently, the fact I did not receive any evidence establishing that employees suffered injury or illness in the past from carrying out the activity does not mean that an exposure to lav waste could not reasonably be expected to cause an injury or illness.

[101] I can only infer from the facts that I have in front of me that a potential for illness transmission through lav waste exists. Viral, bacterial or parasitic biohazards which may be present in lav waste could transmit illnesses such as: tetanus, parasitic worms, hepatitis “A” and protozoan parasites and bacteria in the family of E. coli. I accept this information from the testimony of the Union HSO.

[102] Furthermore, other infectious diseases carried by lav users that have medical conditions are another potential source that can be transmitted through lav waste. I accept this information from the statement in the report from the manager of industrial hygiene.

[103] The parties agree that lav waste may contain infectious biohazard material. The dictionary definition of “infectious”7 is as follows:

infectious – 1 Able to cause disease, unhealthy, infecting 2 Of (a) disease: communicable; liable to be transmitted from one person to another by transfer of micro-organisms. Also, (of a person) infected, liable to infect others. 3 Affected with disease. […] 1 infectious hepatitis, infectious mononucleosis, infectious parotitis etc. […]

[104] I therefore believe that based on this definition an exposure to lav waste could reasonably be expected to cause injury or illness to Mr. Boone at any time but not necessarily every time.

[105] Consequently, I conclude that Mr. Boone was exposed to a danger on
August 20, 2008, when he exercised his right to refuse dangerous work.

[106] Finally, I recognize that the employer has changed its policies and procedures since the time of the refusal by incorporating additional mitigation measures to reduce exposure to lav waste. The measures focused on PPE, employee positioning, education and training to name but a few.

[107] However, the Union HSO testified that he thought it was an erroneous finding on his part, and the others involved in the post refusal hazard assessment investigation, to conclude that the lone piece of PPE required for a particular sub-task requires disposable rubber gloves. In his opinion, the mitigation measure should be amended to include a face shield in addition to the gloves for this particular sub-task. I note that it was the only sub-task he was asked to comment about during his testimony and the same opinion may be applicable to other sub-tasks when performing the activity.

[108] For this reason, I believe that because Mr. Boone is not being provided with adequate protection he is still exposed to a danger today.

[109] I stated that lav waste met the Code definition of a hazardous substance. This being said, the employer is obligated to comply with the duties specified in s. 125 of the Code and the prescribed Regulations relating to hazardous substances as well as sanitation and personal protective equipment that are equally applicable.

Decision

[110] For all the above reasons I hereby rescind the decision that a danger did not exist rendered by HSO MacLeod on August 21, 2008.

[111] I direct the employer to immediately take measures to protect Mr. Boone from the danger as per the direction appended to this decision.

Michael Wiwchar

Appeals Officer

Appendix

Citation: Boone v. Air Canada, 2010 OHSTC 005

Case Number: 2008-25

Direction to Air Canada

Following an appeal brought under subsection 129.(7) of the Canada Labour Code (the Code), Part II, I conducted an inquiry pursuant to subsection 146.1 with respect to a decision that a danger did not exist rendered by a health and safety officer, on August 20, 2008, and confirmed in writing on August 21, 2008. This decision was rendered following an investigation into a refusal to work made by Mr. James Boone at the Edmonton International Airport, Leduc, Alberta. The work place is operated by Air Canada, an employer subject to the Code.

I concluded that a danger existed for Mr. Boone on August 20, 2008, when he was requested by the employer to service aircraft lavatories without adequate protection. Therefore, he is exposed to lavatory waste that may contain infectious biohazard material when performing this activity.

Therefore, you are hereby directed, pursuant to paragraph 145.(2)(a) of the Code, to immediately take measures to protect Mr. Boone and any person from the danger and to report on those measures to a health and safety officer at the Edmonton district office of the department of Human Resources and Skills Development Canada, Labour Program, by April 23, 2010.

Issued at Ottawa, this 24th day of March 2010.

Michael Wiwchar

Appeals Officer

To: Air Canada

Edmonton International Airport

Leduc, Alberta

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