2010-OHSTC-007

OHSTC-10-007

Citation: Pamela Townsend and Grant Leblanc v. Canada Post Corporation, 2010 OHSTC 7

Date: 2010-04-22

Case No.: 2006-07, 2006-19a & 2006-19b

Rendered at: Ottawa

Between:

Pamela Townsend and Grant Leblanc, Appellants

and

Canada Post Corporation, Respondent

Matter:

• Appeal brought under subsection 129(7) of the Canada Labour Code by Rural and Suburban Mail Carriers against a decision of absence of danger rendered by a health and safety officer.
• Appeal brought under subsection 146(1) of the Canada Labour Code by Canada Post Corporation against two directions issued to Canada Post by a health and safety officer.

Decision:

• The decision of absence of danger concerning ergonomics issues is rescinded and a direction is issued to Canada Post Corporation.
• The decision of absence of danger concerning a vehicular traffic issue is rescinded and no direction is issued as the employer has since then evaluated and corrected the situation and the remaining danger now constitutes a normal condition of employment.

Decision rendered by: Richard Lafrance, Appeals Officer

Decision language: English

For the appellant: David Bloom, counsel - Cavalluzzo Hayes Shilton McIntyres & Cornish LLP

For the Respondent: Stephen Bird, counsel – Bird Richard

Reasons

[1] This decision deals with three appeals filed pursuant to the Canada Labour Code (Code). At the request of the parties, those appeals were heard jointly since all three cases concern the same issues and had been investigated by the same health and safety officer.

[2] Both parties agreed that Mr. David Bloom counsel for the employees, would proceed as representing the appellants and that Mr. Stephen Bird, counsel for the Canada Post Corporation, would act as representative of the respondent.

[3] One appeal (Case No. 2006-07) was brought under subsection 129(7) of the Code against a finding of absence of danger by health and safety officer (HSO) Jane Shimono. It was filed by Rural and Suburban Mail Carriers (RSMCs) Pamela Townsend and Grant Leblanc who are employed by Canada Post Corporation in Newmarket, Ontario. Those employees invoked their right to refuse to work on the basis of ergonomics as well as vehicular traffic issues.

[4] The other two appeals (Cases No. 2006-19a and b) were brought by Canada Post Corporation under subsection 146(1) of the Code, first against a direction issued under subsection 145(1) of the Code and second, against another direction issued under paragraph 141(1)(a) of the Code by health and safety officer (HSO) J. Shimono in the context of the previously mentioned work refusals.

Background

[5] The first collective agreement between Rural and Suburban Mail Carriers (RSMCs) and Canada Post Corporation (Canada Post) was ratified on September 30, 2003. Prior to that date, Canada Post would obtain the services of RSMCs to deliver mail in the rural and suburban areas in Canada through individual contracts for services and as such, Canada Post considered the RSMCs as independent and self-employed contractors.

[6] In January 2004, in accordance with their new collective agreement, RSMCs became Canada Post employees and consequently came under the purview of the Canada Labour Code, Part II.

[7] There followed steps by Canada Post to formally advise RSMCs that it would no longer tolerate RSMCs delivering mail to rural mail boxes by driving on the wrong side of the road. As a result, they would not be allowed to deliver mail through the driver side window of their delivery vehicles. Until then, it had been considered a common delivery practice to deliver the mail in this manner.

[8] Starting in October 2005, an increasing number of RSMCs across Canada invoked their right to refuse to work on the basis of two aspects of their work. First, “ergonomics issues”, an expression used by both counsels to describe the repetitive movements of stretching, twisting and reaching out required in delivering the mail through the passenger side window of the RSMCs’ vehicles.

[9] Second, some RSMCs also raised vehicular “traffic issues”, as worded by both counsel, to describe adverse conditions created by the physical location of the mail boxes in relation to the road, road shoulder, as well as volume, type and speed of the vehicular traffic.

[10] On January 26, 2006, P. Townsend and G. Leblanc refused to perform the activity of delivering mail to Rural Mail Boxes (RMBs) in the Newmarket area of Ontario. They claimed there was a danger for them to stop for mail deliveries on roads lacking sufficiently wide shoulders to completely remove their vehicle from the road. They also raised the vehicular traffic conditions, the location of some of the rural mail boxes and also the reduced visibility in winter time.

[11] They also claimed that they could not reach the mail boxes from the driver side and that the repetitive movements of stretching, twisting and reaching out to deliver mail through the passenger side window of their vehicles created a danger to their health.

[12] Canada Post investigated the work refusals. As the employer disagreed that a danger existed, and the employees continued to refuse to work, a health and safety officer was called to investigate the continued refusals.

[13] The two work refusals dealt with in this decision were investigated by health and safety officer (HSO) Jane Shimono, who did so in the presence of the employees, a member of the work place health and safety committee and an employer representative. HSO Shimono testified at the hearing and submitted her investigation report in evidence.

[14] Referring to the work refusal statements of the refusing employees, HSO Shimono noted the following details pertaining to individual locations:

Address

Reason

Old Yonge St. North of Queensville Sideroad – All calls

No shoulder, roadway very narrow, limited visibility, high traffic when golf course open

2^nd Concession, North of Queensville Sideroad

No shoulder, impede traffic

2^nd Concession, between Greenlane and Queensville Sideroad

No shoulder, high traffic, limited visibility

Main St. North, boxes located between Old Main St. Greenlane, (5 calls)

No shoulder, limited visibility, high traffic

Yonge St. North of Greenlane

4 lanes, high speed

Old Yonge St. (dirt road)

No shoulder, windy road, limited visibility

Queensville Sideroad between 2^nd Concession & Old Yonge St.

High speed (70km), shoulder narrows at Old Yonge St.

Hillcrest Dr. 173-89

No shoulder

All above boxes cannot be reached from driver seat

[15] In the course of her investigation, HSO Shimono found that the employer had identified the potential hazard for RSMCs of being struck by passing traffic and had developed procedures to protect against this hazard. She confirmed however that it was impossible to adhere to said procedures at numerous rural mail box (RMB) sites. Nonetheless, she found that the employees were not exposed to a danger because there was insufficient evidence that the situation could definitely cause injury to a person exposed to it before the hazard or condition could be corrected, or the activity altered. She furthermore determined that the employer had failed to protect the refusing employees from the potential risk of being struck by vehicular traffic and issued a direction to the employer.

[16] On January 26, 2006, she directed Canada Post to terminate the following contravention as follows:

Section 124 of the Canada Labour Code, Part II

Every employer shall ensure that the safety and health at work of every person employed by the employer is protected:

In order to deliver/receive mail from “rural mail boxes”, rural mail carriers are required to repeatedly park their vehicles on the right hand side of public roads, which do not have sufficient shoulders to allow carriers to remove their vehicles from both the pavement and the traffic flow. These parking positions being a visual and physical impediment to other vehicular traffic, as well as the limited means of ensuring their vehicle are visible on the same roadway. It is also contrary to the employer’s proposed RSMC Safe Work Procedures, which states; “Ensure your vehicle is not impeding the traffic flow when pulled off the roadway to serve a Point of Call and that your vehicle is not stopped on the crest of a hill or on a curve where the view of an approaching driver may be obscured.” As such, the employer has failed to protect these employees against the hazard of being struck by vehicular traffic.

Therefore, you are hereby directed, pursuant to subsection 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention immediately.”

[17] Regarding the ergonomics issues, HSO Shimono acknowledged the potential for the refusing employees to repeatedly engage in awkward positions and movements in order to reach and sort mail on the back seat of the vehicles, to handle mail across the passenger seat, and to reach to/from the rural mailboxes. Because of the lack of sufficient evidence, she could not however determine that this task could conclusively cause injury to a person exposed to it before the hazard or condition could be corrected or the activity altered. She therefore concluded that the employees were not exposed to a danger.

[18] However, in light of this lack of evidence, she issued the following direction to the employer.

…, you are hereby directed, pursuant to paragraph 141(1)(a) of the Canada Labour Code, Part II, to conduct the following examination:

In consultation with the Policy Committee and Work Place Health and Safety Committee, the employer shall conduct a hazard assessment for the employee’s of delivering/receiving mail through their vehicle’s passenger side windows at rural mailboxes. This assessment must include, but not be limited to, addressing the potential hazards of engaging in repetitive and awkward bending/twisting/positions to reach and sort mail located in the vehicle’s back seat, to handle mail across the passenger seat, and to reach to/from the rural mailbox through the passenger window.

[19] The two refusing RSMCs appealed the decision of absence of danger rendered by HSO Shimono on both counts. As well, Canada Post appealed the two directions.

[20] As there are two distinct issues to be dealt with in these appeals, that is: the ergonomics and the vehicular traffic issues, and that both are very technical in nature, I will address them separately.

Ergonomics Issues

[21] Regarding the appeal of the RSMCs against the decision of absence of danger concerning the ergonomics issues, I have to determine:

1. whether HSO Shimono erred in concluding that the refusing RSMCs were not exposed to a danger by having to deliver the mail from the driver side seat through the passenger side window of the delivery vehicles.
2. whether, based on the above paragraph, this danger, if existing, constitutes a normal condition of employment.

[22] Regarding the appeal of Canada Post against the direction of HSO Shimono, I have to determine whether she erred in issuing the direction under paragraph 141(1)(a) of the Code to Canada Post.

Evidence

[23] A view of the vehicles used by the RSMCs to deliver mail to RMBs was conducted during the hearing.

[24] Numerous documents were submitted in evidence by both parties. Among those, there were: The Eady Report[1] and the Human Factor North Report[2]. Those same documents were presented to the undersigned Appeals Officer in the D. Morrison et al and C. McDonnell et al. v. Canada Post[3] cases where I had the opportunity to study them at length. Both cases dealt with the same two issues raised in this case and were similar in nature with regard to the work refusals.

[25] The Eady Report - On April 2006, Mr. Christopher Eady, Officer, Safety and Ergonomics, at Canada Post, conducted an ergonomics review of RSMC rural mail box delivery. The assessment was conducted shortly after the first few work refusals in Vaudreuil-Dorion, Quebec had occurred and prior to the work refusals of concern in this case.

[26] The purpose of the Eady review was the conduct of an ergonomics safety analysis of RSMC in-vehicle RMB delivery for three different delivery techniques:

1. delivery from the passenger seat (movement from driver seat to passenger seat) in a vehicle with a bench seat, bucket seats and no central console or bucket seats with a central console.
2. delivery using a reaching device from driver seat out the passenger window.
3. Delivery out the driver side window (right hand drive).

[27] Human Factors North Report – Shortly after the Eady review, a second assessment was conducted by Human Factors North Inc. (HFN), to confirm, according to Mr. Jeff Fraser, Manager for the Canada Post RSMC project, the findings of the Eady report. This report, dated December 15, 2006, was prepared for the Canada Post National Joint Health and Safety Committee. While the parties did not deal with the particulars of the reports at the hearing, my reading of those proved to be most informative and very significant as regards the description of the hazards specified by the RSMCs. As well, no evidence was adduced or expert testimony offered to contradict those two assessments.

[28] In the case of the ergonomics assessment conducted by Human Factors North (HFN), the report indicates that the ergonomics risk assessment bore on the essential in-vehicle duties of RSMCs. The assessment included:

• taking off and putting on the seatbelt.
• accessing mail from inside the vehicle.
• moving across the interior of the vehicle from the driver to the passenger seat/side.
• delivering the mail from the passenger seat out the passenger window (assistant) or from the driver side seat out the driver window.

Appellants’ witnesses

[29] RSMC P. Townsend’s testimony concerned her receiving the directive from Canada Post of having to deliver mail from the passenger side window. As well, she testified at length about her delivery routes and the number and physical locations of RMBs on those routes. At the time of the refusal, she was using a pick-up truck with extended cab and bench seats and eventually changed it to a mid-size car with a split bench seat. According to the route summary, she was delivering mail to 417 points of call.

[30] During the view of her vehicle, P. Townsend demonstrated and explained the movements required to deliver mail through the passenger side window of the vehicle. She testified about the bruises and pain she suffered when attempting to deliver mail in this fashion.

[31] During the view of his vehicle, RSMC Grant Leblanc demonstrated the movements required to deliver mail through the passenger side window. He explained that while he never delivered mail through the passenger window, he believed that the repetitive twisting of his lower back to retrieve the mail from the back of his vehicle and the stretching and leaning out the window on the passenger side to deliver the mail posed a significant health risk for now and the future. At the time he was using a van to deliver mail to 835 points of call, according to the route summary.

[32] Gail Bossenberry, National Occupational Health and Safety Representative, CUPW, testified that neither the Policy nor any of the Work Place Health and Safety (HS) committees had been consulted regarding the development of the Canada Post Safe Work Procedures.

[33] She further testified that Canada Post failed to:

• ask the policy or work place committee to take part in the Eady study;
• inform the committees of the impact of the Eady Study.
• provide RSMCs with a list of acceptable vehicles or appropriate interior configurations.

[34] G. Bossenberry further testified that they (the Union) asked for a more conclusive assessment of the ergonomics issues regarding the number of deliveries per hour as well as for a further investigation concerning right hand drive vehicles.

Respondent’s witnesses

[35] J. Fraser testified that Canada Post disagreed that a danger existed. However, to ensure the continuation of mail deliveries, it provided assistants to any RSMC who refused to work based on ergonomics concerns. This was done as a temporary measure until the issues could be resolved by an Appeals Officer.

[36] On the ergonomics issues, J. Fraser testified that Canada Post had the Human Factors North (HFN) study conducted so that more factors than those examined by the Eady Study be considered. The HFN study was done in consultation with the Union. The HFN study is the first phase and ought to be continued with a study on right hand drive vehicles. He added that the HFN study did not determine how someone could deliver mail safely from the passenger side window of a vehicle.

[37] Ms. Pamela Reid, Canada Post, testified that since 1995 when she was appointed Superintendent, she has never received a complaint on ergonomics issues.

Arguments of the parties

Appellants’ Arguments

[38] On the ergonomics issues, D. Bloom argued that HSO Shimono correctly recognized the potential for the employees to repeatedly engage in awkward positions and movements in order to reach and sort the mail on the back seat of vehicles, to handle mail across the passenger seat and to reach to/from rural mailboxes. However, she erred in concluding that the evidence did not establish danger.

[39] According to counsel, the evidence established that the physical requirements of passenger side window delivery imposed an unreasonable risk which amounted to danger within the meaning of the Code.

[40] He noted that the Safe Work Procedures required delivery solely out the passenger side window. Such procedures require the RSMCs to engage in a series of repetitive awkward movements due to the configuration of their vehicles. Those movements would likely have resulted in both physical discomfort and injury.

[41] D. Bloom argued that the vehicles used by the RSMCs were expressly/tacitly approved by Canada Post as the latter never provided guidelines on vehicle selection. As confirmed during the view of the vehicles, their configuration made delivery through the passenger side window physically difficult and virtually impossible without injury.

[42] D. Bloom observed that for both RSMCs, the average rate of delivery was well above the 12.5 deliveries per hour rate recommended in the HFN study.

[43] Finally, D. Bloom asked that the Appeals Officer quash the decision of the HSO and find that delivery to RMBs through the passenger side window requires repetitive awkward positions and movements that amount to a danger as defined in the Code.

Respondent’s Arguments

[44] S. Bird, agreed that the following facts were not disputed:

1. the ergonomics issues are clearly raised in each complaint;
2. P. Townsend complained of reaching and bending, but she does not specify a particular motion to be evaluated;
3. neither P. Townsend nor G. Leblanc have complained before;
4. neither P. Townsend nor G. Leblanc have claimed or made a WCB claim;
5. RSMCs are required to sort and transport mail to their vehicles. These actions require ergonomic lifting, twisting and bending which appears to be of no apparent consequences; and
6. both RSMCs were delivering out the driver side window prior to the refusal- again requiring reaching, bending and stretching in different degrees.

[45] S. Bird argued that HSO Shimono was right in finding that there was no danger with respect to the ergonomic movements for the following reasons:

1. the ergonomic movements constitute a “normal condition of employment” and therefore are exempt from the provision related to dangerous work. (Paragraph 128(2)(b)[4] of the Code).
2. the work environment, body positioning, and the type of ergonomic movement performed were solely within the discretion of the RSMCs; and
3. the inability of RSMCs to deliver through the passenger side window was caused by their personal characteristics.

[46] S. Bird argued that the employees have the responsibility to provide a vehicle that is “appropriate to the route”. Consequently, if the employees select a vehicle that is defective or inappropriate to perform their duties, then they should not have the right to refuse to work. While not shifting the safety obligations from the employer, the Code also places obligations on employees for their safety.

[47] Counsel further argued that jurisprudence indicates that a finding of danger cannot be made when the cause of the problem is a personal characteristic of an employee. He maintains that it is because of their body stature that RSMCs Townsend and Leblanc encounter difficulties in delivering mail through the passenger side window of their vehicles.

[48] He concluded that the Eady and HFN reports identified no particular movement as problematic in RMB delivery. Finally he pointed out that the HFN report cautions the readers of the report that application of the delivery rates is not encouraged.

[49] Mr. Bird argued that there was no evidence or legal basis to support the requirement that the ergonomics assessment be conducted. The direction was too broad and over-reaching to be rationally connected to the events observed by the HSO.

[50] S. Bird asked on behalf of Canada Post that the directions be quashed.

Analysis

[51] In the previously mentioned Morrison case, the undersigned rendered a decision on the same ergonomics issues relating to the delivery of mail by RSMCs through the passenger side window of their vehicles. It is to be noted that the same evidence was adduced and testimonies were, in essence, the same as in this case. The arguments presented by both counsels in this case, were as well similar to the ones formulated in the Morrison case. Therefore the following analysis is based on the Morrison analysis while taking into consideration the testimony of the two RSMCs and the specificities of the present case.

[52] A particular feature of the present case however is that although a decision of absence of danger was rendered, a direction under paragraph 141(1)(a) was still issued. Consequently I have to determine whether the HSO erred in issuing a direction to Canada Post regarding the ergonomics issues.

[53] I have to determine whether at the time of the refusals, the RSMCs were exposed to a “danger”, as that term is defined in subsection 122(1) of the Code.

[54] The Code defines “Danger” as follows:

122.(1) In this Part, "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;

[55] In deciding whether the RSMCs were exposed to a danger, HSO Shimono based her decision on the premise that the task had to “conclusively cause” injury to a person. However, the Federal Court and the Federal Court of Appeal determined in Martin[5]that in order to find that a “danger” exists:

1. there has to be a condition or activity that can reasonably be expected to cause an injury or illness to an employee, which may not happen immediately upon exposure, but needs to happen before the condition or activity is altered.
2. the definition does not require that the “danger” cause an injury every time the condition or activity occurs. The French version, “susceptible de causer” indicates that it must be capable of causing injury at any time but not necessarily every time.
3. it is not necessary to establish precisely the time when the hazard, condition or activity will occur, but only to ascertain in what circumstances it could be expected to cause injury and establish that such circumstances will occur in the future, not as a mere possibility, but as a reasonable one. (my underline)

[56] Furthermore, Madame Justice Gauthier, in the Federal Court decision in Verville [6], noted that:

Reasonable expectation of injury cannot be based on hypothesis or conjecture, but if a hazard or condition is capable of coming into being or action, then it should be covered by the definition.

[57] Consequently, to determine whether a danger existed for the refusing RSMCs, I have to ask myself whether the movements required to deliver the mail from the driver seat through the passenger side window can reasonably be expected to cause injury.

[58] I note that Mr. Bird suggested that the RSMCs had not described a single movement that was hazardous to their health and safety. However, consideration must be given to what Madame Justice Dawson of the Federal Court said at paragraph 88 of the Pollard[7]decision:

... to require an employee to provide a more technical description of the movement said to give rise to a danger would place an onerous burden on an employee, and in my view, frustrate the objective of Part II of the Code.

[59] In addition to the demonstration by the RSMCs of the required movements to deliver mail, I also retain from their testimony that to deliver mail through the passenger side window, as required by Canada Post Safe Work Procedures, they have to:

remove their seat belt, move to the passenger side window, open the window, reach out to open the mail box, take out the outgoing mail, put the outgoing mail in a lettertainer on the back seat of the vehicle, recover ingoing mail from the back seat, reach out to place the mail in the mail box, close the cover of the mail box, raise the flag, move back to the driver side, attach their seatbelt, drive on to the next box.

[60] As a result, I find that the RSMCs more than aptly described the movements regarding the issues to be resolved in the present cases.

[61] Since the SWP does not take into consideration any ergonomic element, I based my analysis partly on the opinion of the RSMCs, and partly on the Eady and Human Factors North reports which both assessed the movements required to deliver the mail as per the SWP.

[62] I see no reason not to give considerable weight to the testimony of the RSMCs. As stated by Madame Justice Gauthier in Verville (supra),

[51] Finally, the Court notes that there is more than one way to establish that one can reasonably expect a situation to cause injury. One does not necessarily need to have proof that an officer was injured in exactly the same circumstances. A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form the opinion. It could even be established through an inference arising logically or reasonably from known facts. (my underline)

[63] As such, both RSMCs have lengthy experience in the work they do and, in my opinion, testified factually and as per the knowledge acquired through such experience.

[64] I also give considerable weight to the two ergonomic assessments as this was the only evidence presented regarding the hazard analysis of the ergonomics question. Neither party offered any contrary evidence.

[65] It is worth noting that these two assessments were not available to the health and safety officer at the time of her investigation. However, as this appeal constitutes a de novo proceeding, I can take them into consideration.

[66] I find that the conclusions of both assessments were clear. Delivering mail from the passenger side window of a vehicle was putting the RSMCs at a very high risk of developing musculoskeletal injuries.

[67] In the ergonomics assessment report done by HFN, I note that the majority of ergonomics-related injuries could be categorized as musculoskeletal disorders. “Musculoskeletal disorders” (MSDs) or Injury are defined in the HFN report as: injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal disk. Examples include carpal tunnel syndrome, rotator cuff tendonitis, and tension neck syndrome. MSDs may occur after hours, days, months or years of exposure. The symptoms of these disorders may appear to have a sudden onset or they can begin slowly and develop over a long period of time.

[68] I understand that these are injuries and disorders where exposure to various risk factors present in the workplace may either contribute to the disorders development or aggravate pre-existing conditions. Furthermore, the HFN report specified that while a number of factors can increase MSD risk, the primary MSD hazards are force, repetition, and fixed or awkward postures.

[69] The report also states that MSD issues arise in workplaces in which the demands of the job exceed the capabilities of the person doing the job. The report indicated that jobs are not designed for a variety of workers – they do not take into account what is known about the variation of people’s size, strength, endurance etc. and this puts some workers at a greater risk of developing MSDs than others. The report also stated that it was clear that there was a strong link between exposure to certain physical factors/hazards in a workplace and the development of MSDs. Exposure to these physical hazards can cause damage to the muscles, tendons, nerves, etc..

Can the movements required to deliver mail from the driver seat through the passenger side window be reasonably expected to cause injury?

[70] In light of the evidence received at the hearing, my analysis of the ergonomics question will focus on the particular circumstances surrounding the task of passenger side delivery. Primarily, I will address the two circumstances that were identified by the Eady and HFN reports as being hazardous to the health and safety of the employees, that is: 1) the interior configuration of the delivery vehicles and 2) the rate/frequency of deliveries.

The interior configuration of the delivery vehicles

[71] I retain from the Eady report that in the case of vehicles with bucket seats and central consoles, this was the worse delivery method as the magnitude of ergonomic risk factors posed an unacceptable safety hazard. The writer of the report expressed significant concerns with these types of vehicles at any of the RMB rates due to extreme low back postures.

[72] I acknowledge the fact that HFN recommended that RSMCs be provided with a list of recommended vehicle features that would assist in making their job more comfortable, efficient and safe. Their recommendation was that a risk assessment of right hand drive vehicles be done. Right hand drive vehicles that have been designed for seated mail delivery feature a larger driver window that extends below seated elbow height and allows for improved shoulder position. Other features such as a rack or table system to place the mail in the vehicle as well as alternate seat belt design should also be assessed.

[73] Regarding this issue, the HFN report stated that the study findings clearly show that the RSMCs did not presently have the right equipment (vehicle) to effectively and safely perform their primary job function of delivering mail from the vehicle to the RMBs and stated that there was an urgent need to find a solution to the problem.

[74] I have no reasons to question the testimony of P. Townsend that she suffered bruises and pain when attempting to deliver mail through the passenger side window of her vehicle.

[75] From my observations of the RSMCs in their vehicles, and taking into consideration the findings of both ergonomic assessments, I am convinced that moving from the driver seat to the passenger side window requires extremely awkward movements that will likely result in some type of MSD. As well, I find that having to twist and reach to the back seat to handle the mail and then stretch out to open and hold the cover of the mailbox, and manipulate the mail also requires a multitude of awkward and extreme movements. One has to remember that all this is done hundreds of times a day, 5 days a week, year round.

[76] Therefore, based on the above, I find that the continuous repetition of the extreme and awkward movements required inside the delivery vehicles to manipulate and deliver the mail through the passenger side window can reasonably be expected to cause injury to the RSMCs.

The rate/frequency of deliveries

[77] On the subject of RMB delivery rate, I retain from the HFN report that dynamic shoulder movements, occurring more frequently than 2.5 times per minute, are considered high risk for the development of musculoskeletal disorders. As well I note that this threshold is further modified, and considered to be very high risk in the presence of a number of factors including, but not limited to, extreme posture, long duration of repetitive work, high external force, high static load and/or lack of training. HFN concluded that taking into consideration a number of possible scenarios, they estimate the acceptable rate of deliveries per hour to vary from 12.5 per hour for the delivery technique of driver out the passenger side window to 50 per hour for an assistant delivering mail through the passenger side window.

[78] Testimony by the RSMCs established that they were making deliveries at an average of 86 to 100 times per hour, 4.8 to 7.7 hours per day, five days a week, year round. Accordingly, they were delivering mail at rates that were 6 or 7 times the acceptable rate of deliveries per hour.

[79] The recommended safe rate of delivery by HFN is based on what is considered an acceptable rate that constitutes the threshold in excess of which a RSMC would be considered at a high risk for a shoulder injury.

[80] In reading the report, I found that HFN does caution the readers about using delivery rates because of the variety of potential variables affecting the frequency, severity and number of shoulder postures required to complete the task of in-vehicle delivery. Such variables include work practices, distribution or number of RMBs on the route (i.e. clustering and spacing of RMBs along the delivery route). As well, vehicle design, RSMC anthropometry, RMB design (including location and maintenance) and seasonal variations should be taken into account.

[81] The potential for musculoskeletal injuries is increased by the rate of deliveries and the interior design of the vehicles, such as bucket seats, central consoles and the presence of other impediments such as gear shifters and emergency brakes. One does not have to be a specialist, but a person that does it every day, to realize that having to cross over a console, gear shifter and brake handle hundreds of time per day within the confines of a vehicle will only result in bruises and most likely some form of MSD.

[82] Nonetheless, I find that the repetitive movements required to deliver the mail from the driver side seat through the passenger side window at any delivery rate over and above the acceptable rate of 12.5 deliveries per hour can reasonably be expected to cause an injury to the RSMCs.

Conclusions

[83] In view of the significant risk factors linked to the task of in-vehicle delivery that it found in its assessment, HFN recommended that the repetitive nature of the job be addressed as well as the awkward and, at times, extreme shoulder postures and the tremendous variability in worker, job and workplace factors. In the presence of extreme posture, long duration of repetitive work, the RSMCs are considered to be at a very high risk of suffering MSDs.

[84] I note that MSDs may occur after hours, days, months or years of exposure. The symptoms of these disorders may appear to have a sudden onset or they can begin slowly and develop over a long period of time. Consequently, the evidence is clear that the injuries may not happen immediately upon exposure, but nonetheless the evidence is also clear that those repetitive movements are capable of causing injuries, although, not necessarily every time.

[85] Based on the above, I find it a reasonable conclusion that it is more than likely that the repetitive movements required to deliver mail from the driver position through the passenger side widow by the refusing RSMCs can reasonably be expected to cause musculoskeletal injuries to the RSMCs.

[86] I find that the hazardous condition originating from a method of delivery that requires excessive, repetitive awkward movements caused by the interior design of the vehicles, along with the repetitive use of incorrect ergonomic movements required to deliver the mail through the passenger side window, is not only capable of coming into being but does actually occur.

[87] Finally, and as previously stated, on the subject of the interior configuration of the delivery vehicles, the evidence clearly shows that deliveries made with vehicles with central consoles and bucket seats at any delivery rate pose an unacceptable safety hazard. The evidence also establishes that with respect to the frequency of deliveries, the refusing RSMCs had to make deliveries at rates that were well over the recommended rates. Any one of these two circumstances, taken separately, clearly demonstrates a risk for the health and the safety of the employees. Consequently, I am satisfied that the frequency of delivery coupled with the interior configuration of the delivery vehicle can reasonably and certainly be expected to cause musculoskeletal injuries to the exposed RSMCs.

[88] Therefore, I find that RSMCs P. Townsend and G. Leblanc were exposed to a danger at the time of the work refusals.

[89] With regard to the issue raised by Mr. Bird to the effect that employees cannot refuse to work because of the employees’ personal characteristics, I find that the Code states at section 122.1 that the purpose of the Code is to prevent accident and injury arising out of, linked with or occurring in the course of employment. Consequently, while it is evident that there has to be a relationship between the injury to health and the activity being accomplished in the course of employment, there are no exemptions or restrictions in employer duties regarding the personal stature or body characteristics of an employee.

Selection of vehicle

[90] On the matter of selection of vehicles, it was argued by S. Bird that it was not the responsibility of the employer to select the vehicles. I find however that while the employees do have a duty under paragraph 126.(1)(c) of the Code to take all reasonable and necessary precautions to ensure their health and safety while at work, the employer cannot delegate or be relieved of its duty under section 124 to ensure the health and safety of its employees, as stated at subsection 126(2) at the Code.

[91] As well, under paragraph 125.(1)(s) of the Code, the employer has to ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works.

[92] To this effect, I find that the Safe Work Procedures address very few potential hazards and do not address any present or potential ergonomic or other hazard with regard to the movements required to deliver the mail through the passenger side window and/or the impediments caused by the interior design of the delivery vehicles.

[93] Taken as a whole, I take this to mean that an employer is ultimately responsible for the health and safety of its employees and the responsibility cannot be delegated down to the employees. I am of the opinion that if the employer requires an employee to provide his /her own tools to do a job, as in this case RSMCs are required to provide their own vehicle to make the deliveries, then the employer has the duty to make sure that the tool(s) is safe to do the required work to wit, the employer has to make sure that the vehicles used by the RSMCs are mechanically and operationally sound, and that nothing in said vehicles, such as the interior design, will create a hazard or condition that may injure the employees. Under the circumstances, I find that it is the duty of Canada Post to provide the employees with the information regarding every known or foreseeable health and safety hazard that may be caused by the interior configuration of the vehicles, as required by the Code.

[94] In this case, I find that the employer never informed the employees about the potential ergonomic hazards, although it knew about them as there had already been multiple work refusals on the same issue in the recent past. As well, other than formulating guidelines for cargo space, the employer never provided guidelines to the employees regarding the delivery vehicles, that is: type of vehicle, interior configuration and the potential hazards tied in with the various types of vehicles involved, as it should have done.

[95] Regarding the selection of other alternate modes of delivery by the RSMCs, as argued by counsel Bird, my opinion is the same as above to wit, the employer is not relieved of any of its duties by implying that it is the employee’s responsibility to ensure his or her own health and safety.

[96] I find that the employer provided “Safe Work Procedures” to which the employees have a duty to adhere under paragraph 126(1)(b) of the Code. It is not, in my opinion, up to the employees to develop or modify safe work procedures but to the employer, who has the responsibility under section 124 of the Code to ensure the health and safety of all its employees, and it has to do so in line with the purpose of the Code, which is to prevent accidents and injuries to health arising out of, linked with or occurring in the course of employment (section 122.1).

Is the “Danger” a normal condition of employment?

[97] Having determined that a danger exists, I now have to determine whether said “danger” constitutes a normal condition of employment, and would therefore preclude the employees from invoking their right to refuse to work in accordance with paragraph 128(2)(b)of the Code.

[98] Paragraph 128(2)(b) of the Code reads as follows:

128(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

(b) the danger referred to in subsection (1) is a normal condition of employment.

(my underline)

[99] In April 2009, Appeals Officer Cadieux, in the Eric V. and al [8] decision, fully shared the interpretation of subsection 128(2)(b) of the Code that was given by this Tribunal in the P&O Ports[9] decision and added to the interpretation as follow:

[…]

[297] In a recent Federal Court decision in P&O Ports Inc. and Western Stevedoring Co. Ltd. v. International Longshoremen's and Warehousemen's Union, Local 500, 2008 FC 846, the Court upheld the AO's interpretation in that case with regard to a danger that constituted a normal condition of employment. Like the Court, I fully share the interpretation of this notion by the AO, which is explained as follows:

[152] I believe that before an employer can say that a danger is a normal condition of work, he has to identify each and every hazard, existing or potential, and he must, in accordance with the Code, implement safety measures to eliminate the hazard, condition, or activity; if it cannot be eliminated, he must develop measures to reduce and control the hazard, condition or activity within safe limits; and, finally, if the existing or potential hazard still remains, he must make sure that employees are provided with the necessary personal protective equipment, clothing, devices and materials against the hazard, condition or activity. This of course, applies, in the present case, to the risk of falling as well as to the risk of tripping and slipping on the hatch covers.

[153] Once all these steps have been followed and all the safety measures are in place, the "residual" hazard that remains constitutes what is referred to as the normal condition of employment. However, should any change be brought to this normal employment condition, a new analysis of that change must take place in conjunction with the normal working conditions.

[298] The principles that must guide the employer in its intervention and in the priority to be given to the measures to be taken to protect employees are set out in sections 122.1 and 122.2 of the Code, and the employer's general obligation is stated at section 124 of that same enactment. Those provisions are as follows:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

122.2 Preventive measures should consist first of the elimination of hazards, 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.

[...]

124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

[299] An employer that intervenes to protect its employees must first be guided in its analysis by the Code's primary objective: to prevent accidents and injury to health arising out of, linked with or occurring in the course of the employment (section 122.1). The employer must operate in accordance with that objective. With that objective in mind, the employer should then determine whether its intervention is in line with the order of priority established for the purpose of preventing accidents (section 122.2). The employer must initially try to eliminate hazards, and if that is not possible, it must then focus on reducing them. If the employer succeeds in reducing hazards, or even if that is not possible, it must also implement measures for addressing the risk by providing the personal protective equipment, clothing, devices or materials needed to ensure the health and safety of employees - in this case, the COs.

[300] Lastly, the employer must consider that its responsibility under the Code is to ensure that the health and safety at work of its employees is protected (section 124), an extremely high standard that obliges the employer to be rigorous in its analysis of the hazards that might affect the health and safety of employees.

[301] It is clear that the employer must ensure that its employees are protected at work. Accordingly, the protective measures put in place by CSC must be sufficient to protect the COs from any situation that could reasonably be expected to cause injury to them, regardless of whether or not they are actually injured. The protective measures that are adopted must be proportional to the severity of the potential injury.

[302] To state, as Ms. Perron and the HSO did, that conducting escorts is a normal condition of employment is misleading. It is true that conducting escorts is a normal condition of the COs' employment in the sense that it is a normal task that they perform as part of their employment, as their work descriptions indicate. However, there is an important distinction to be made between a task, such as an escort, and a danger that is part of that task, i.e. the reasonable possibility that an injury will occur during the performance of the task before it can be addressed. There is also an important distinction to be made between such a danger and a danger that constitutes a normal condition of employment that would preclude a refusal to work. The latter presupposes that the employer has first determined that a danger exists during escorts and has then taken all of the measures necessary to protect its employees, i.e. it has identified and controlled all of the factors that could have a major negative impact on the duty of conducting escorts. At that point there is nothing more the employer can do to protect its employees any further.

[303] I would consider the residual danger that persists after all of those control measures to be a normal condition of employment. That danger alone, which cannot be controlled and for which no directions can reasonably be issued under subsection 145(2) to protect the employee any further, would not justify a refusal to work because such a danger constitutes a normal condition of employment. In all other cases a finding that a danger exists is called for and directions must be issued to the employer to protect the employees. A refusal to work is thus justified in such cases.

[…]

[100] To summarize, a danger that constitutes a normal condition of employment is residual in nature, i.e. it is the danger that remains after the employer has taken all the necessary steps to eliminate or control the hazard, condition, or activity.

[101] It follows that for a danger to be found to constitute a normal condition of employment, that danger must be one that cannot be controlled through the protective measures established under the Code. Such a danger would not justify invoking the right of refusal. An analysis of the evidence should make it possible for the undersigned to decide whether the measures taken by the employer to protect the RSMCs minimized the reasonable possibility of injury.

[102] After careful consideration of all the evidence presented, I cannot conclude that Canada Post implemented safety measures or developed measures to reduce or control the ergonomic hazard.

[103] I am mindful of the fact that Canada Post provided the refusing RSMCs with assistants and that is clearly within the spirit of the Code. However, counsel for Canada Post specified that this was done on a temporary basis with a view to maintaining the level of service and without recognition that a danger existed. It is also worth noting at this juncture that in Pollard (supra), the Federal Court upheld a decision of this Tribunal that a danger existed for RSMCs with respect to the ergonomics issues.

[104] Consequently I find that the danger identified above is not a normal condition of employment within the purview of paragraph 128(2)(b) of the Code.

Did HSO Shimono err when she decided to issue a direction to Canada Post under paragraph 141(1)(a) of the Code?

[105] The direction states:

… you are hereby directed, pursuant to paragraph 141(1)(a) of the Canada Labour Code, Part II, to conduct the following examination:

In consultation with the Policy Committee and Work Place Health and Safety Committee, the employer shall conduct a hazard assessment for the employee’s of delivering/receiving mail through their vehicle’s passenger side windows at rural mailboxes. This assessment must include, but not limited to, addressing the potential hazards of engaging in repetitive and awkward bending/twisting/positions to reach and sort mail located in the vehicle’s back seat, to handle mail across the passenger seat, and to reach to/from the rural mailbox through the passenger window.]

[106] Health and safety officers are designated by the Minister of Labour under subsection 141(1) of the Code because they are qualified to perform their duties under the Code. While they have to be qualified to apply the Code, I am of the view that the legislator did not mean for them to be specialists in every domain touched by the Code. In cases where the area of expertise goes beyond their knowledge, HSOs may be accompanied or assisted by any person that they deem necessary. In addition, under paragraph 141.(1)(a), a health and safety officer also has the power to direct an employer to conduct examinations, tests, inquiries, investigations and inspections.

141.(1) Subject to section 143.2, a health and safety officer may, in carrying out the officer’s duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may

(a) conduct examinations, tests, inquiries, investigations and inspections or direct the employer to conduct them; (my underline)

[107] As such, I find that HSO Shimono, at the time of her investigation, was well founded in issuing a direction. She had sufficient knowledge to recognize that a potential ergonomics hazard existed and she correctly used her powers as a health and safety officer to direct the employer to conduct an examination of the ergonomics issues raised by the RSMCs.

Decision

[108] Regarding the appeal of the RSMCs against the decision of absence of danger by HSO Shimono for the reasons stated above, I hereby rescind the decision of absence of danger with respect to the workplaces identified in this case in Newmarket and find that it is reasonable to believe that an injury could occur under the circumstances and therefore that the two refusing RSMCs were exposed to a danger at the time of the refusals.

[109] As a consequence, I am directing Canada Post Corporation to immediately take measures to protect RSMCs P. Townsend and G. Leblanc from the danger described above as per the appended directions to this decision.

[110] Regarding Canada Post’s appeal of the direction, for the reasons stated above, I confirm the direction issued to Canada Post by HSO Shimono to conduct an ergonomics assessment. I note however that Canada Post has since then conducted two ergonomics assessments as indicated above; however, it is not my role in this proceeding to comment on compliance with the direction by the employer.

Traffic Issue

[111] Regarding the appeal by the RSMCs against the decision of absence of danger concerning the vehicular traffic issue, I have to determine:

1. whether HSO Shimono erred in concluding that the refusing RSMCs were not exposed to a danger by having to deliver the mail on roads which do not have sufficient shoulders to allow the employees to completely pull of the roadway and remove their vehicles from the traffic flow.
2. whether, based on the above paragraph, this danger, if present, constitutes a normal condition of employment.

[112] For the appeal by Canada Post against the direction issued by HSO Shimono, I have to determine whether she erred in issuing the direction under subsection 145(1)(a) of the Code on this same issue.

Evidence

[113] A site view of the delivery routes was arranged and conducted in the presence of both parties.

[114] As well, a number of documents were presented in evidence by both parties. Among those, were:

• Canada Post Safe Work Procedures ^[10];
• Review of Rural and Suburban Mail Carrier Operations by the National Research Council of Canada (NRC)^[11];
• Rationale Behind the RMB Traffic Safety Assessment Tool^[12];
• Traffic assessment of Rural Mail Boxes in the Newmarket area^[13].

The Safe Work Procedures

[115] S. Bird indicated that following the first work refusals in the Province of Quebec, Canada Post had developed and implemented the Safe Work Procedures (SWP).

[116] In the present case, the HSO received a copy of the Safe Work Procedures when she investigated the work refusals. At the hearing, counsel for Canada Post used the Safe Work Procedures to demonstrate that the employer had a procedure in place to deliver mail safely.

[117] The Safe Work Procedures address:

1. general safe driving rules;
2. vehicle maintenance and safe working condition of the vehicles;
3. adverse weather conditions;
4. driving to points of delivery within the flow of traffic;
5. pulling off the road to deliver the mail at the RMBs;
6. serving the Rural Mail Box;
7. re-entering roadway traffic.

[118] On each of those points, the procedure mentions possible hazards as well as the precautions to take with regard to those possible hazards.

The NRC Review of Rural and Suburban Mail Carrier Operations

[119] This review was the first assessment conducted for Canada Post to review RSMC operations, including delivery, conspicuity, mail box location, and safe operating procedures, stopping distances, lines of sight and local traffic regulations.

Traffic Safety Assessment Tool (TSAT)

[120] This assessment was presented by the employer to explain what they were doing to assess all RMBs as well as what remedial actions are taken to correct situations where the employer believes that based on TSAT assessment, the risk of an accident is unacceptable. The assessment was conducted by ITrans Consulting which, according to their website, is one of the largest canadian consulting firms specializing in transportation planning and traffic engineering.

[121] The following, taken from the report entitled “Rationale Behind the RMB Traffic Safety Tool”, summarizes well what was considered in the assessment tool and why:

The Panel considered the driving task requirements that arise due to an RSMC decelerating to stop at a rural mailbox and merge back into traffic. Specific requirements considered where:

• For the RSMC, the time required to merge into traffic from a stopped position, whether on or off the roadway.
• For other drivers encountering a stopped RSMC vehicle, the time required to detect the stopped RSMC vehicle on the roadway and for other drivers to respond appropriately by stopping, or changing lanes and passing the stopped vehicle, potentially in the face of oncoming traffic.
• Specific information on the time requirements for a driver to accept a gap into traffic from a stopped position on the side of the road is not available. Therefore, information based on analogous situation was used to provide time requirements for merging. The analogous situation was a right hand turn made from a stopped position. Based on the data, the 85 percentile gap required to turn right was 9 seconds. That is, when a gap of 9 second was available, in 85% of cases drivers would accept it.
• An additional requirement to consider is how long the RSMC will have to wait for suitable 9-second gaps. The higher the traffic volume, the longer the time the drivers must wait for a suitable gap. Drivers that have to wait more than 30 seconds begin to take risks by accepting smaller gaps. Therefore, the impact of traffic volume on the availability of 9-second gaps was considered by the Panel by recognizing that RSMCs, who must merge more frequently than the average driver, may take smaller gaps. A wait time of 25 seconds was adopted which equates to a qualitative design measure called a Level of Service (LOS) C, where C is generally an acceptable traffic condition for future planning.
• Time requirements were also determined for approaching drivers who must safely respond to a stopped RSMC if the RSMC is partially or fully obstructing the road. Based on research into detection and recognition, as well as decision and response initiation, an 11-second time gap requirement was concluded to be a reasonable time gap. This requirement means that if the RSMC vehicle is partially blocking a lane, the approaching vehicle needs to have a decision sight distance equivalent to at least 11 seconds ahead of the rear of the RSMC vehicle. The 11 second allows the driver of the approaching vehicle sufficient time to respond appropriately, whether by stopping behind the RSMC vehicle or moving into the opposing lane and passing. (my underline)
• Time requirements for passing a stopped vehicle were developed using the model for determining passing sight distance requirements for two-lane highways. In conclusion, the time required beyond the stopped RSMC vehicle is 14 seconds, as providing a level of safety similar to that provided by the threshold values for merging (9 seconds) and for an approaching vehicle encountering a stopped vehicle in the lane (11 seconds).”

[122] The directives^[14] on how to use the TSAT explain what is meant by having a vehicle on the road. A vehicle is considered to be on the road^[15] when:

• any part of the vehicle encroaches on the roadway when stopped at RMB;
• where no white line edge line is marked, a vehicle traveling in the same direction must change their path of travel or swerve to avoid a collision with RSMC vehicle stopped at RMB;
• where no white edge line is marked, two vehicles travelling in opposite directions must change their path or slow down in order to pass the RSMC vehicle stopped at RMB;
• if the RSMC vehicle is stopped on a bicycle lane when stopped at a RMB.

[123] In interpreting the results of the assessment, at any given RMB, the assessment must meet all the set criteria in order to remain in place, otherwise the RMB has to be moved to a safe location or eliminated.

Traffic assessment of Rural Mail Boxes in the Newmarket area

[124] This document provides an overview of the process and an actual assessment record of the 3 mail routes of concern in this case.

• On one route, 235/244 locations were considered to be on the road. Of those RMBs, 130 locations required to be “modified” to meet the TSAT criteria.
• On the second route, 349/365 locations were considered to be on the road. Of those RMBs, 46 locations required to be “modified” to meet the TSAT criteria.
• On this last route, 254/344 locations were considered to be on the road. Of those RMBs, 180 locations required to be modified to meet the TSAT criteria.

Appellants’ witnesses

[125] P. Townsend explained the problem with the delivery to many RMBs. Her main concern was that the road shoulder is too narrow in many locations and she cannot park her vehicle with all four wheels off the road. She believes this impedes traffic and may expose her to an accident. At other locations, the RMBs are too close to a hill or curve and consequently the oncoming cars cannot see the RSMC vehicle in time and a collision may occur.

[126] Furthermore, she explained that at some locations, the RMBs were located close to deep ditches and it is difficult to see the edge of the ditch, especially in winter when snow drifts hide the edge of the ditch and consequently, she could easily slip in those ditches.

[127] She confirmed however that following her refusal, her delivery route was assessed and most of the RMBs were moved to Group Mail Boxes (GMBs).

[128] RSMC Grant Leblanc testified that he refused to work because at many locations on his delivery route, the road shoulder is too narrow to allow his vehicle to be completely off the road. As well he had concerns with the high volume and speed of the vehicular traffic on his routes.

[129] Using a map of the area and a list that he had submitted to the HSO during her investigation, he explained the problematic locations where the road shoulder was narrow. He pointed out that shortly after the refusal, his route was assessed, more than 200 RMBs were removed from the route and for the remaining RMBs, the road shoulder was wide enough to allow him to be completely off the road.

[130] G. Bossenberry commented on the difficulty the Union had with TSAT, that is: volume and speed of vehicular traffic, where they are of the view that the local HS Committee should participate in the assessment. As well she was of the view that the seasonal variances are not adequately dealt with.

Respondent’s witnesses

[131] J. Fraser explained how and why they arrived at the TSAT and what the assessment considered. He further explained that after the TSAT was completed, if a RSMC had complaints, such as a change in traffic caused by seasonal variance, then a new assessment was made. On the issue of the necessity of having four wheels off the travelled portion of the road, he commented that TSAT allows having two wheels on the road in certain situations.

[132] He explained as well about road conditions on certain parts of his delivery routes where the road shoulder is too narrow to allow four wheels off the road.

[133] Mr. Harold Camilleri, Delivery Service Officer for Canada Post, testified about the Traffic Safety Assessment Tool (TSAT) for the application of which he was trained by iTrans. He used the TSAT when he assessed the Newmarket delivery route after the work refusals and talked about the various situations he encountered while conducting said assessment. He explained that when an RMB fails the assessment, that either the box has to be moved to a safer location or eliminated from distribution, in which case the delivery is moved to a Community Mail Box (CMB).

[134] He explained that generally, since TSAT started being used, approximately 56% of the RMBs have failed the assessment and have had to be either repositioned or removed from distribution.

[135] Ms. Pamela Reid, Superintendent, explained the procedure to deal with RSMC complaints regarding specific boxes. Generally, if a problem is identified, the client is informed and delivery is suspended until the problem is fixed. Regarding the speed of vehicular traffic on delivery routes, she explained that deliveries are allowed on routes where the speed limit is 80kmh or less.

[136] P. Reid explained that in response to the direction issued by the HSO on the vehicular traffic issue, Canada Post decided to remove all the boxes were the RSMCs could not have all four wheels off the road from delivery. The result was that 1,100 of the 1200 boxes in the area were removed from delivery.

Arguments of the parties

Appellants’ arguments

[137] On the vehicular traffic issue, D. Bloom argued that HSO Shimono correctly concluded that Canada Post was in contravention of section 124 by requiring that delivery be made to RMBs where significant safety hazards existed. He maintained however that HSO Shimono erred when she failed to conclude that this amounted to a danger on the basis that there was “insufficient evidence” to confirm that this situation could definitely cause injury to a person exposed to it before the hazard or condition could be corrected.

[138] Counsel argued that the evidence established that delivery to certain RMBs amounted to a “danger” because of their location and condition, the absence of shoulders and limited visibility due to hills and curves. He noted that it was evident during the site observation that a significant number of boxes were unsafely located. As an indication of this, the TSAT assessment of those sites indicated that a large number of those boxes failed the assessment.

[139] Consequently, the Appellants request that the Appeals Officer quash the decision of HSO Shimono that a danger did not exist, and find that the highway safety hazards in respect of certain RMBs amount to a danger.

Respondent’s arguments

[140] On the vehicular traffic issue, S. Bird argued that HSO Shimono was correct in finding that there was no danger. He argued as well that the situations outlined by the employees do not meet the definition of danger, as defined in the Code, for the following reasons:

1. the RMBs were being delivered to prior to the refusals;
2. the workers delivered to these RMBs through the driver’s side window, and as such were required to be closer to the RMBs, i.e. closer to the edge; and
3. there existed a well known procedure for reporting and dealing with such boxes, which could lead to a cut off of delivery.

[141] S. Bird suggested that the Traffic Safety Assessment Tool (TSAT) is the only tool that should be used to determine whether a particular RMB is dangerous, because:

1. it is a scientific tool that measures risk – takes high end measurements (errs on the side of caution)
2. it provides the best methodology for assessing relative and acceptable risk;
3. it is generally accepted by the parties, subject to a few specific issues;
4. it was the best tool available for assessing whether a RMB should remain in service at its existing location;
5. a “passing” box does not constitute a “danger”; and
6. TSAT does not require “4 wheels off the road”, although it is a factor that is part of the assessment.

[142] Counsel maintained that a RMB that fails the TSAT does not necessarily equate to “danger”. The position of Canada Post on this is that a failure with TSAT shows a level of risk at the location that Canada Post is unwilling to accept.

[143] Counsel maintained that the direction issued by HSO Shimono on the vehicular traffic issue was improper because Canada Post has taken all reasonable steps to ensure the health and safety of the RSMCs. Furthermore, he argued that the requirement to have all four wheels off the road is overly broad.

Analysis

[144] As was the case concerning the ergonomics issues, I rendered a decision in the D. Morrison et al and C. McDonnell et al. v. Canada Post case[16] on the same vehicular traffic issues relating to the delivery by RSMCs of mail to RMBs by RSMCs. It is to be noted that in that case, the evidence that was adduced and the testimonies received were in essence the same as in the present case. The arguments from counsels were as well similar to the ones presented in the Morrison decision. Therefore the present analysis is based on that previous analysis while taking into consideration the testimony of the two RSMCs involved in this case. However, in the present case, a further issue was that the RSMCs feared being involved in an accident and getting injured if such an accident occurred because they could not get their vehicles completely off the travelled portion of the road.

Did the health and safety officer err in finding on the traffic issue that the two refusing RSMCs were not exposed to a “danger”?

[145] The same rationale was followed by HSO Shimono as with the ergonomics issues. In deciding if the RSMCs were exposed to a “danger”, HSO Shimono based her decision on the premise that the situation had to “definitely cause” injury to a person. However, as indicated earlier in the decision, the Federal Court and the Federal Court of Appeal in Verville (supra) and Martin (supra), determined that to find that a “danger” exists: “there has to be a condition or activity that can reasonably be expected to cause an injury”

[146] The vehicular traffic issue has to do with the location of RMBs along established delivery routes where certain RMBs are situated near blind corners, blind hills, ditches, narrow or non existing road shoulders, taking into account at the same time the type, volume and speed of the said traffic on those delivery routes. When reviewing the evidence, I noted that for the most part, as in the Morrison case (supra), the RSMCs described very similar types of circumstances relative to the said “traffic” issue, where they believed to be exposed to a “danger”:

1. the presence on the road of farm equipment and large trucks.
2. the presence of deep ditches.
3. finally, the location of RMBs near blind hills and blind corners in addition to elevated numbers of vehicles, the speed of vehicular traffic as well as the width of the road and road shoulders.

[147] In this case however, as indicated above, there was the additional issue of the RSMCs fearing being involved in an accident and getting injured if such an accident occurred because they could not get their vehicles completely off the travelled portion of the road. They did not have four wheels off the road.

Circumstance 1

The presence of farm equipment and large trucks.

[148] As in the Morrison case (supra), while it could be argued that such presence on the road could potentially be the cause of an accident, most likely resulting in injuries to an RSMC involved in such an accident, I find that there is nothing in this that would come under the control of the employer.

[149] The employer has a duty, pursuant to the Code, to protect the employees where the employer controls the work place and/or the activities of the employees. However, in the present situation, the employer has no control over who, what, where or when someone or something can or cannot be on the road. I fail to find anything in the Code that an HSO or Appeals Officer could direct an employer to do to protect the employees against such potential hazard, other than stopping the activity of delivering mail to RMBs. Nothing was adduced in evidence by the RSMCs to convince me otherwise.

Circumstance 2

The presence of deep ditches.

[150] As with the Morrison case (supra), I agree that there is a potential for an accident to occur to wit, slide into the ditch, winter or summer, and that the driver is at risk at that time of being injured. However, the actual driving of the vehicle remains under the control of the RSMC, and it is up to the RSMC to decide how close he or she can bring his/her vehicle to the edge of the ditch and drive accordingly. Canada Post procedure allows for RSMCs to forego delivering the mail to RMBs that do not, in their opinion, appear safe. I find that this comes under the direct control of the RSMCs, that it is the responsibility of the RSMCs to determine how close they can get to a box situated near the edge of a ditch and decide whether to make the delivery or not.

[151] Consequently, in these circumstances, I find that RSMCs can avoid the “danger” by adhering to the employer procedure of not delivering the mail to a potentially hazardous location and reporting it to the manager. Therefore the perceived “danger” can be corrected before the accident can happen. As a result, this does not meet the definition of “danger” and in such cases, the RSMCs are not exposed to a danger.

[152] Consequently, I find that under these described circumstances, the RSMCs are not exposed to a “danger” as the accident can be avoided by reporting the hazardous condition before any accident or injury occurs.

Circumstance 3

The location of RMBs near blind hills and blind corners in addition to elevated numbers of vehicles, the speed of vehicular traffic as well as the width of the road and road shoulders.

[153] I find that the “Rationale behind the RMB Traffic Assessment Tool” (TSAT) was developed based on a driver behaviour approach, that is, incorporating safety and the RSMC driver task requirements, as well as safety and the driving task of other drivers who encounter a stopped or merging RSMC vehicle, for the roads on which the RSMCs operate. As well, I found that relevant legal restrictions were included in the Assessment tool.

[154] As indicated at the outset, the de novo nature of this proceeding allows the undersigned to receive and take into consideration all the evidence, whether or not it was considered by or available to the HSO at the time of his or her investigation. Consequently, in deciding whether the RSMCs were exposed to a danger, I gave considerable weight to the TSAT document. This is particularly the case here since the RSMCs put forth no argument against the TSAT, other than the fact that the tool in question does not take into consideration seasonal changes. This will be taken into consideration later on in this decision.

[155] I retain from the TSAT document that for a location to pass the assessment, there has to be acceptable time requirements for a vehicle driver to react to the positions and/or actions of other vehicles. This is required because, based on driver behaviour, there needs to be adequate time for a person to react when faced with another vehicle that is merging back into traffic or, when coming up suddenly on a stopped vehicle that is partially blocking the roadway. This time is required for the driver to decide whether to stop, or avoid the vehicle by passing it on the left. This decision needs to be taken while accounting for the stopped or merging vehicle, oncoming traffic and speed of travel, speed of other vehicles and the number of vehicles on the road.

[156] As well, the RSMC sitting in his/her vehicle needs to have an adequate time gap to decide to merge back into traffic, and it was found that there are limits as to how long a person will wait for an adequate time “space” to merge back. Passed that time, the person takes shorter and shorter intervals to make a move to merge back into traffic.

[157] At the present time, the evidence shows that the time gaps established by ITrans, as well as the other criteria used to assess a location, are reasonable in my opinion to assess the locations of RMBs and make sure that the risk of collision is mitigated to a minimum. When a location passes the assessment, the risk of collision under the above described circumstances is consequently reduced to an acceptable level. I understand however that the risk of collision is not totally eliminated.

[158] In reading the document, I understand that for an RMB to be declared safe, all criteria of the assessment have to be met. If one of the criteria is not satisfied, then the location of the RMB has to be modified. Consequently, the RMB has to either be moved to a safer location down the road, or it may mean the elimination of that location altogether.

[159] Consequently, based on the above, I find that the RSMCs are always exposed to the risk of a collision under the described circumstances, which is not potential or future, but present at different levels based on the specific locations of the RMBs.

[160] The condition created by delivering mail to RMBs in such described circumstances, such as blind spots, narrow road shoulders and speed of vehicular traffic, constitutes in such a case exposure to a collision with another vehicle before the condition can be altered.

[161] Collision is defined in the dictionary[17] as being “a violent impact of a moving body, especially a vehicle, with another or with a fixed object”. I find it more than likely that a person involved in a collision, “a violent impact” between two vehicles, will be injured in the process. Based on the said circumstances, the collision will likely occur because there will not be sufficient time or space to avoid it, therefore the condition cannot be altered before injury occurs.

[162] I agree that injuries may not be sustained every time a collision occurs. However, as recognized by Justice Gauthier in the Verville decision (supra), the collision does not have to cause an injury every time the person is exposed to the danger. It must only be capable of causing injury. As indicated above, I find it reasonable to expect that a vehicle collision will most likely cause injury to any person involved in it.

[163] Based on the above, I am of the opinion that under the described circumstances, as they existed at the time of the work refusals, it is logical and reasonable to conclude that the RSMCs are more than likely to be involved in a collision at any time while delivering mail to RMBs situated in those places described by the RSMCs.

[164] As indicated in the Morrison decision (supra), although the risk of a collision may be low, it is nonetheless always present. I find that it is reasonable to conclude that in a collision between two vehicles, the consequences may be high in severity, and that it is reasonable to expect that the persons inside the vehicles will suffer injuries.

[165] In conclusion, as in Morrison (supra), I find that at the time of the refusals, the two refusing RSMCs from Newmarket were, under the described conditions, exposed to a danger as it is defined in Part II of the Code.

[166] On the issue of not having all four wheels off the road, I found in TSAT[18] that under certain conditions, TSAT accepts this and allows for the vehicle to be stopped on the travel portion of the road. I found two conditions in TSAT where not having all four wheels off the travelled portion of the road is accepted:

1. 2 lanes roadway:
   
   • no double solid yellow line in centre,
   • a count of less that 40 vehicles in 15 minutes,
   • no hill or curve within the 11 seconds time gap behind the vehicle , and
   • no hill or curve within the 14 seconds time gap in front of the vehicle,
2. 4 lanes roadways:
   
   • a count of less than 80 vehicles in 15 minutes
   • no hill or curve within the 11 seconds time gap behind the vehicle.

[167] Consequently, for those locations where the RSMCs vehicles may have to be stopped on the travel portion of the road, if, when assessed, all the criteria set by TSAT are met, I find that this is as acceptable as with any of the other situations assessed. Therefore, I find that it is not always necessary to have all four wheels off the road to be in a situation where, along with the other circumstances discussed above, the “danger” is a normal condition of employment.

[168] During their testimony, the RSMCs identified the potential hazardous locations as they went through their delivery routes. I do not believe it necessary to identify those precise locations at this time, as those delivery routes have now been assessed using the TSAT, and the hazardous locations have either been eliminated or moved to a safer place.

Is the “Danger” a normal condition of employment?

[169] Having determined that a danger exists for the refusing RSMCs due to the hazardous conditions created by the locations of the RMBs, I now have to determine whether the said “danger” constitutes a normal condition of employment, and would therefore, pursuant to paragraph 128(2) (b) of the Code, preclude the employees from invoking their right to refuse to work.

[170] To find that a danger constitutes a normal condition of employment, one has to be satisfied that the danger is one that cannot be controlled and for which no direction can be issued under the Code to further protect the employees. As previously explained in the Morrison decision (supra), I am of the opinion that the employer must have fulfilled all of its duties regarding the control or elimination of the said “danger” before being able to finally determine if subsection 128(2) applies.

[171] I have commented on the exception created by paragraph 128.(2)(b) and explained the test used by the Tribunal in an analysis of what constitutes a normal condition of employment. At the time of the refusals, the evidence is that the employer had done nothing to identify the hazards connected with the vehicular traffic issue, let alone eliminate or mitigate the “danger”.

[172] Therefore under the described circumstances, at the time of the work refusals, Canada Post had not fulfilled and complied with all of its duties regarding the control or elimination of the said “danger”. Consequently, I find that the exception stated at paragraph 128(2)(b) of the Code did not apply and that the danger was not a normal condition of employment.

[173] Normally, in deciding that a danger exists at the time of the refusal(s) and that the said danger does not constitute a normal condition of employment, I ought to issue a direction to the employer to protect the RSMCs against the said danger.

[174] However, since the refusals, the evidence adduced at the hearing has established that Canada Post assessed the RMBs that were the subject of the work refusals and, it would appear, corrected the conditions of the locations that failed the assessment.

[175] In view of this, I can only conclude that the employer has, for the present time, satisfied its obligations and identified the potential danger locations, corrected those locations accordingly and reduced the danger to a minimum.

[176] Since the employer has now, to the extent reasonably practicable, implemented measures to minimize the danger, any residual danger that may remain, as explained above, now becomes a normal condition of employment.

[177] However, as indicated in the Morrison decision (supra), should any change in the circumstances surrounding the location of a RMB occur, a new analysis of that location must take place taking into consideration the change that has occurred on that delivery route to determine if that location still satisfies all of the TSAT criteria. I find that a new assessment needs to be done if at any time, and this may include seasonal changes, something occurs that could affect the results of a TSAT assessment. If one of the TSAT criteria is not met, then the “danger” condition is back, and said “danger” no longer constitutes a normal condition of employment.

[178] It appears from the data compiled in the Newmarket RMB assessment[19] that a fair number of the RMBS that were at the origin of this appeal were in locations where the RSMC vehicle was on the road, not on the shoulder. In view of this, many locations failed the assessment and therefore those locations had to be modified. In other words, originally, at the time of the work refusals, many of those boxes were in locations where the RSMCs were exposed to a danger. Consequently, the direction issued by HSO Shimono was well founded.

Decision

[179] Regarding the RSMC’s appeal against the decision of absence of danger, for the reasons stated above, I find that at the time of the work refusals, the RSMCs were exposed to a danger, as defined by the Code, due to the hazardous conditions created by the location of certain RMBs and that it is reasonable to conclude that an accident could occur that could more than likely cause an injury under the circumstances.

[180] Having determined that a “danger” existed at the time of the refusals, the direction issued by HSO Shimono is quashed.

[181] Given such a finding of “danger”, a direction should issue, pursuant to subsection 145(2)(a) of the Code, to Canada Post to immediately protect the two RSMCs from the danger. However, as the employer has since implemented the TSAT assessment and has taken measures to mitigate the danger to a minimum, I consider that any remaining danger at the identified locations in this case now constitutes a normal condition of employment and the employees are therefore precluded from invoking their right to refuse to work as stated at paragraph 128(2)(b) of the Code.

[182] Regarding Canada Post’s appeal against the direction, even though I found that the direction was founded, based on the evidence I have received during the proceedings, I am rescinding that direction.

[183] The reason for rescinding that direction is that with the advent of TSAT and the measures taken by the employer further to the assessment, the RSMCs vehicles may now be stopped on the travel portion of the roadway and still be, according to TSAT, stopped in a zone where the “remaining” danger is a normal condition of employment. I am of the opinion that were I to confirm the direction, it would place Canada Post in a situation where it would not be able to comply with the direction other than by eliminating delivery to the identified locations in this case.

Richard Lafrance

Appeals Officer

Appendix I

Citation: Pamela Townsend and Grant Leblanc v. Canada Post Corporation, 2010 OHSTC 7

Case No: 2006-19b

Direction to Canada Post Corporation

On January 23, 2006, health and safety officer Jane Shimono conducted an investigation into the refusal to work of rural and suburban mail carriers (RSMC) P. Townsend and G. Leblanc, who had to deliver mail to rural mail boxes (RMB) on various rural roadways in the Newmarket area, Ontario. The two RSMCs were employed by Canada Post Corporation (CPC), an employer subject to the Canada Labour Code, Part II, doing business at 190 Mulock Drive, Newmarket, Ontario, L3Y 3Z0.

The two RSMCs appealed under subsection 129.(7) of the Canada Labour Code, Part II, the decision of absence of danger made by health and safety officer Shimono following her investigation.

Following my inquiry into the circumstances of that decision, I find that in-vehicle mail delivery to RMBs from the driver side position through the front passenger side window in the circumstances in place at the time of the work refusals constituted a danger for RSMCs P. Townsend and G. Leblanc.

Therefore, you are hereby directed, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take appropriate and immediate measures to correct the hazards or conditions, or alter the activity that constitute the danger and to protect those employees from the said danger.

Furthermore, you are hereby directed, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to cease in-vehicle RMB delivery activity as carried out by P. Townsend and G. Leblanc at the time of the work refusals until such time as you have complied with the present direction, which does not prevent you from taking all measures necessary for the implementation of this direction.

Issued at Ottawa, Ontario, April 22, 2009

Richard Lafrance
Appeals Officer

Canada Post Corporation

190 Mulock Drive,

Newmarket, Ontario,

L3Y 3Z0