2011 OHSTC 4
Citation: Canadian National Railway Company, 2011 OHSTC 4
Date: 2011-02-22
Case No.: 2011-08
Rendered at: Ottawa
Between:
Canadian National Railway Company, Appellant
Matter: Application for a stay of a direction
Decision: The application for a stay of the direction is denied
Decision rendered by: Ms. Katia Néron, Appeals Officer
Language of decision: French
For the appellant: Mr. Michel Huart, Counsel, - Langlois Kronström Desjardins, S.E.N.C.R.L.
REASONS
[1] This decision concerns an application for a stay of a direction filed on January 14, 2011 by Mr. Michel Huart on behalf of the Canadian National Railway Company (CN). The direction was issued on January 31, 2011 by Health and Safety Officer Mr. Alain Testulat (HSO Testulat).
Background
[2] The direction being appealed was issued following an investigation by HSO Teslulat at the CN work place located at 8050 Cavendish Blvd., Ville Saint-Laurent (Quebec), more specifically at the Taschereau shunting yard.
[3] The direction issued by HSO Testulat reads as follows:
[Translation]
After analyzing the activity (crossing on foot over a portable bridge plate from one multi-level automotive railcar to another) and the documents that you sent us by e-mail (local health and safety committee analysis).
After receiving confirmation on January 31, 2011 from Mr. Mike Tucci, the operations manager at the automobile ramp, that this task was still being performed in the same manner.
The health and safety officer is of the view that performing an activity constitutes a danger to an employee while at work, specifically:
Crossing from one rail car to another on foot, at a height of more than 2.4 metres above the nearest permanent safe level, on a walkway (portable bridge plate) designed to transfer automobiles, creates a risk of falling that could lead to serious injury, or even death.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take steps immediately to protect any person from this danger.
Pursuant to subsection 145(3), a notice bearing number 3759 has been affixed to the bulletin board of the employee’s cafeteria and may not be removed without the officer’s authorization.
You are further HEREBY PROHIBITED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, from performing the activity in question until these directions have been complied with.
[4] On February 7, 2011, Mr. Huart, on behalf of CN, appealed the direction and filed an application for a stay of the direction.
[5] Mr. Huart submitted his arguments in support of his application for a stay of the direction during a teleconference on February 14, 2011. The participants present at the teleconference were Mr. Huart, Mr. Claude Benoît, union representative for the employees working at the Montréal automobile ramp, Mr. André Urbain, supervisor at the automobile ramp, Mr. Don Wates, Senior Director, Ms. Chantale Crevier, Assistant Director, Mr. Mike Tucci, operations manager at the Montréal automobile ramp, Mr. Lizam Hasham, legal advisor for CN for Eastern Canada, and HSO Testulat.
[6] After hearing the arguments presented by Mr. Huart and those of C. Benoît, the employees’ representative, who supported the employer’s request, I decided not to grant a stay of the direction until a decision on the merits of the appeal is rendered. Below are the reasons in support of the order.
Analysis
[7] Subsection 146(2) of the Canada Labour Code (the Code) states the following:
146(2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.
[8] In order to determine whether I should grant the employer’s application, I must exercise my discretion in a way that furthers the object of the Code, that is to ensure the protection of the health and safety of employees. To this end, I will apply the criteria developed by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores
1 - The applicant must demonstrate, to the satisfaction of the appeals officer, that the question to be tried is serious as opposed to a frivolous or vexatious claim.
2 - The applicant must demonstrate that a refusal of the part of the appeals officer to issue a stay of the direction would cause the applicant significant harm.
3 - The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.
Is the question to be tried serious as opposed to a frivolous or vexatious claim?
[9] Mr. Huart asserts that the application to stay the direction concerns the fact that, since receiving the direction, the employer has been asking its employees to use the rail car ladders to get from one rail car to the next, when in fact, in the employer’s opinion, this presents a greater risk to the health and safety of its employees than if it were to allow the use of portable bridge plates.
[10] Mr. Huart also indicated that the use of portable bridge plates has been studied and approved as the correct way to execute the manoeuvre in question, following a developed and established procedure, as well as training developed ahead of time by the local health and safety committee. Thus, in Mr. Huart’s opinion, the issuance of the direction challenges the entire process involving the local health and safety committee provided under the Code to find solutions and ensure the protection of employees.
[11] I am satisfied by Mr. Huart’s submissions, that there is a serious question to be tried in this appeal.
Will the applicant suffer significant harm if the direction is not stayed?
[12] Mr. Huart maintains that CN will suffer significant harm if the direction is not stayed, for the following reasons.
[13] The procedure involving the use of the rail car ladders instead of the portable bridge plates as instructed by CN following the issuance of the direction creates, in the employer`s opinion, a greater risk to the health and safety of employees.
[14] Indeed, although when employees use the rail car ladders they are required to follow the established procedure involving the three-contact-point technique, they must nonetheless pivot at the top of the ladder as they reach for either the ladder rung or the rail car handle, depending on whether they are exiting the rail car or entering it. This involves torsion and traction motions on the part of the employees. Moreover, in the event of snow, rain or ice conditions, this creates a risk of poor grip on the ladder rungs or rail car handles.
[15] For these reasons, and also based on past minor accidents that have happened to employees when they used rail car ladders to cross between rail cars, Mr. Huart maintains that it is less risky for employees to cross between rail cars using a portable bridge plate than using the rail car ladders.
[16] C. Crevier added, on behalf of the employer, that the portable bridge plates in question are also used to move the automobiles between rail cars and to the ramp used to unload them from the train. These bridge plates are made of aluminium or steel, they are approximately 24 inches wide and approximately 50 inches long, and their extremities are solidly anchored by latches to the floors of the levels supporting the automobiles on the rail cars. In addition, their floors are covered by a nonslip surface.
[17] C. Crevier also argued that although the local health and safety committee reviewed this option, the portable bridge plates cannot be equipped with guardrails because this would add weight to these structures, which have to be carried from the ground into the rail cars by the employees. She pointed out that these bridge plates had been designed to carry automobiles from one rail car to the next, which meant that their dimensions had been specifically calculated to permit this manoeuvre.
[18] In support of the arguments presented by Mr. Huart and C. Crevier, C. Benoît, on behalf of the employees, maintained that given that the portable bridge plates are approximately 50 inches long, employees only have to take one step on them as they cross between rail cars.
[19] Mr. Huart also argued that the entire automobile industry in North America currently uses such portable bridge plates for the manoeuvre in question.
[20] Mr. Huart also maintained that since the employees take more time to cross between rail cars when using the rail car ladders,their productivity suffers as a result.
[21] The arguments given by Mr. Huart did not convince me that CN would suffer considerable harm if the direction is not stayed until I hear this case on its merits. In fact, there is no mention in the direction that the temporary solution that is to be used in order to comply with the direction is to use rail car ladders to cross between rail cars.
[22] In regards to the third criterion, I believe that apart from the procedure and training provided for the employees on the three-contact-point technique when using portable bridge plates, the employer has not presented me with any other measure or method for performing the manoeuvre in question other than using the rail car ladders which, in its own opinion, are not the best way to ensure the health and safety of the employees. I would add that the issue here is preventing the risk of an employee falling from a height of 2.4 metres.
[23] In view of the preceding, the employer has not convinced me that if a stay of the direction were granted, sufficient measures would be put in place to protect the health and safety of employees.
Decision
[24] For these reasons, the application for a stay of the direction issued by HSO Testulat on January 31, 2011 is denied.
[25] The hearing on this matter is scheduled for a date in the near future, February 24, 2011.
Katia Néron
Appeals Officer
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