2011 OHSTC 11
Citation: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, local 8284, 2011 OHSTC 11
Date: 2011-05-19
Case No.: 2009-25
Rendered at: Ottawa
Between:
Bell Canada, Appellant
and
Communications, Energy and Paperworkers Union of Canada, local 8284, Respondent
Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by a health and safety officer.
Decision: French
Decision rendered by: Ms. Katia Néron, Appeals Officer
Decision language: English
For the Appellant: Ms. Marie-Christine Lauzon, Counsel – Bell Canada
For the Respondent: Mr. Yves Ménard, union representative – Communications, Energy and Paperworkers Union of Canada (CEP/FTQ
REASONS
[1] This concerns an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) by Bell Canada of a direction issued on September 11, 2009 by Health and Safety Officer (HSO) Mr. Sylvain Renaud.
Background
[2] The following was taken from the testimony of HSO Renaud, his investigation report and the related documents, the documents filed by Ms. Michèle Préfontaine, assistant division head of the occupational injuries management group at Bell Canada, the testimony of Mr. André Tartre, industrial hygienist, and that of Ms. Louise O’Doherty, sector director of the workplace in question.
[3] This case stems from the refusal to work exercised on September 9, 2009 by Ms. Aline Castonguay, telephone operator at the Bell Canada call centre in Montréal, Quebec.
[4] The circumstances surrounding Ms. Castonguay’s refusal and her reasons are as follows.
[5] Since March 30, 2009, on the recommendation of her general practitioner and despite the fact that the audiologist who had examined her hearing had recommended against her reintegration into her position as a telephone operator at that time, Ms. Castonguay was gradually returning to work following an acoustic shock to her right ear.
[6] The administrative review branch at the Commission de la santé et de la sécurité au travail (the CSST) had concluded
[7] In January 2009, Ms. Castonguay met with an otorhinolaryngologist
[8] When she returned to work, Ms. Castonguay used her left ear to take calls in order to protect her injured ear. In addition, she used an ear plug in her right ear and wore a patch over it. Her work station and her headset had been changed, and both had two protective devices, one to reduce the sound coming through her headset by 110 decibels
[9] Despite these protective measures, Ms. Castonguay’s hyperacusis was aggravated in May 2009. To isolate ambient noises, Bell Canada had dividers installed around Ms. Castonguay’s work station.
[10] Despite these dividers, Ms. Castonguay heard loud and strident noises in her left ear through her headset on July 30 and August 7, 2009. Bell Canada then had a new device installed at Ms. Castonguay’s work station, which automatically brought down to 5 out of a maximum of 10, the volume of every new incoming call, with the option to increase the volume if necessary while handling the call.
[11] Steps had also been taken in July 2009 to find a specialist who could provide permanent solutions to adapt Ms. Castonguay’s work station. In September 2009, this assessment had not yet been completed.
[12] On September 9, 2009, as she was taking two calls at the same and having difficulty hearing one of them, Ms. Castonguay raised the volume on her listening device. A noise then came through that she described as very strident. Fearing that the noise might cause the same problems in her left ear as those she was suffering in her right one, she refused to continue working. The report on the reasons for Ms. Castonguay’s refusal read as follows:
[Translation]
I am a victim of a work-related accident caused by a strident noise heard on August 7, 2008. I am returning to work three (non-consecutive) days a week. This morning I received a call from a client wanting to make a collect call, and when I announced the call from that client, I heard a very strident noise come through. I had two clients on line and a strident noise. Given that my right ear is injured, I am scared and feel that there is a danger to my other ear.
[13] Given that Bell Canada representatives supported the absence of danger for Ms. Castonguay’s hearing even as she maintained her refusal, Bell Canada contacted the Labour Program, Human Resources and Skills Development Canada, in order to have a health and safety officer investigate the situation.
[14] In his investigation, HSO Renaud obtained the reasons cited by Ms. Castonguay in support of her refusal. Ms. O’Doherty then explained the reasons in support of the absence of danger as follows.
[15] For the last several decades, non-vocal noises have occasionally been coming through employees’ headsets. Given that telephone operators had complained of these noises, Bell Canada conducted a study to try to eliminate them. Following the study, it was determined that it was impossible to eliminate the great majority of these noises, which might be coming from a wrong number given by a client, for instance a fax or modem number, or an unforeseen technical problem occurring in the communications network. Bell Canada tried to control these noises through the following measures.
[16] In addition to the device that automatically brought down the volume of incoming calls, except for certain types, and the two sound protection devices described above, Bell Canada introduced a new procedure authorizing a 15-minute break after a noise comes through a headset. In addition, every time such a noise occurs, a form had to be filled out with an indication of the noise perceived by the employee. Buttons were also installed in each work station to enable every employee to transfer these noises to a voice box for analysis by the technical support team for telephone operator facilities, also known as the “facilities management group” or FMG. If it was possible to determine the origin of the noises, steps were taken to attempt to eliminate them.
[17] During his investigation, HSO Renaud noted that there had been no assessment of the acoustic pressure level to which the telephone operators had been exposed while the noises in question occurred. He also reviewed the above-mentioned forms that reported such noises. He noted that in many cases these documents mentioned strident or very loud noises. He was also informed that telephone operators threw their headsets on the floor when these noises occurred.
[18] On this basis, but also because, to the best of his knowledge, the pain threshold for the human ear is around 120 dBA, which is a high level of acoustic pressure, HSO Renaud concluded that it was possible for employees to be exposed to high levels of acoustic pressure when noises came through their headsets.
[19] Ms. Danielle Giroux, union representative and co-chair for employees on the local health and safety committee, also informed HSO Renaud that six employees, including A. Castonguay, had taken time off work over the last few years after hearing a noise in their headset. In support of these statements, she gave HSO Renaud the minutes of the local health and safety committee that mentioned slight and disabling injuries as a result of noises coming through the employees’ headsets. She also gave him the previously mentioned decision rendered on February 24, 2009 by the CSST’s administrative review branch concerning the event of August 7, 2008, as well as the decision by the Commission des lésions professionnelles (CLP) Bell Canada c. Marie-Josée St-Arnaud
[20] During his investigation, HSO Renaud was informed that in addition to Ms. Castonguay, another telephone operator had left work on September 9, 2009 after hearing a noise in her headset.
[21] On September 10, 2009, Ms. Castonguay gave HSO Renaud the report by her general practitioner and the results of her hearing assessment further to his recommendations. Further to the noise she had heard when she refused to work, Ms. Castonguay’s general practitioner diagnosed her with an acoustic trauma to her left ear. The audiologist who had examined her wrote the following in his report:
[Translation]
Results: Hearing is within bilateral normal limits with a slight drop at 8 kHz
The discomfort thresholds suggest a dynamic field to the left, though with a slight hyperacusis at 6 kHz (previously absent) & a moderate hyperacusis to the right […] REC: NO MORE EXPOSURE TO STRIDENT NOISES.
[22] Based on the preceding, and referring to Ms. Castonguay’s description of the noise perceived at the time of her refusal to work, HSO Renaud concluded that the measures introduced by her employer to protect her hearing were insufficient because at any moment a high acoustic pressure noise could, in his opinion, come through her headset and cause her an acoustic trauma. For these reasons, he issued Ms. Castonguay a danger direction prohibiting her from performing her work until measures were introduced to protect her.
[23] And because in his opinion telephone operators working at the facility all faced the same conditions as those described above, HSO Renaud concluded that a danger also existed for all of those employees. He then gave a danger direction to Bell Canada prohibiting it from having the work in question done and at the same time ordering it to take immediate measures to eliminate the danger. The direction reads as follows:
[Translation]
The health and safety officer considers that an existing condition in the workplace constitutes a danger for an employee at work, specifically:
The fact that a telephone operator uses a headset to talk to clients or answer a call when a high acoustic pressure unusual noise could occur and result in a trauma constitutes a danger.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take steps immediately to eliminate the danger.
Pursuant to subsection 145(3), notice number 3751 was posted on the CLSS bulletin board on the 5th floor and may not be removed without the officer’s authorization.
You are ALSO HEREBY PROHIBITED pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, from performing the task in question until these directions have been complied with.
[24] This case was heard on September 9, 10 and 17, 2010 in Montréal.
Issue
[25] Was the direction issued on September 11, 2009 to Bell Canada by HSO Renaud well-founded?
Submissions of the parties
A) Appellant’s submissions
[26] Ms. Marie-Christine Lauzon maintains, on behalf of the appellant, that the situation invoked in support of Ms. Castonguay’s refusal was not an emergency situation but rather a situation stemming from a recurring and unpredictable systemic problem that existed not only at Bell Canada but also throughout the entire telecommunications industry.
[27] Alleging that the noises in question could occur during the handling of any call, and that it is impossible to eliminate them in most cases, Ms. Lauzon maintains that this situation is also a normal condition related to Ms. Castonguay’s job.
[28] Moreover, Ms. Lauzon maintains that the measures set in place by Bell Canada at the time of the investigation by HSO Renaud to retrace the source of the noises in question, and control their occurrence and their acoustic pressure levels, would protect the hearing of the telephone operators working in the facility, including Ms. Castonguay, hence again, there was no emergency situation.
[29] For these reasons, Ms. Lauzon maintains that a refusal to work under the Code could not be used to resolve the problem of noises coming through employees’ headsets or to foster a work environment free of such.
[30] In support of these arguments, Ms. Lauzon referred to the notion of emergency measure linked to the right to refuse to work under the Code as established in the Federal Court of Appeal decision in Canada (Attorney General) v. Fletcher
[31] Based on the decision rendered by the Canada Labour Relations Board in Antonia di Palma and Air Canada
[32] For all of these reasons, Ms. Lauzon maintains that HSO Renaud should not have endorsed Ms. Castonguay’s refusal.
[33] Moreover, in Ms. Lauzon’s opinion, HSO Renaud founded his decision on the existence of a danger to all of the telephone operators working in the facility based on the following reasoning. Because Ms. Castonguay and M.-J. St-Arnaud had suffered an injury in the past, because Ms. Castonguay had been re-injured on September 9, 2009, because the employees were throwing their headsets on the ground and other telephone operators, one of them on the day of Ms. Castonguay’s refusal, had left their work after noises came through their headsets, the acoustic pressure level of these noises must necessarily be high and cause injury to an employee, hence his conclusion that there was a danger not only for Ms. Castonguay but also for all employees. According to Ms. Lauzon, this reasoning is based on mere presumptions, and does not follow the doctrine of reasonable expectation in connection with the definition of the term “danger” under the Code. In support of this argument, Ms. Lauzon referred to the decisions by the Federal Court and the Federal Court of Appeal in Verville v. Canada (Correctional Service)
[34] Yet, Ms. Lauzon maintains that the terms “strident noises”, “slight injury” or “disability” found in the documents reviewed by HSO Renaud mean neither that the strident noises came through the employees’ headsets or that the injuries were to their hearing. On the contrary, Ms. Lauzon maintains that the noises reported by the employees were not strident noises but rather noises that fall into the category of disruptive noises. Moreover, Ms. Lauzon maintained that during HSO Renaud’s investigation, the exposure level of employees to noise, even when the noises came through their headsets, met the regulatory standards prescribed by the Code, so Bell Canada had met all of its responsibilities in regard to providing auditory protection for its telephone operators.
[35] In support of this argument, Ms. Lauzon called as witnesses L. O’Doherty, Mr. Patrick Hunter and A. Tartre. I accept the following from their testimonies.
[36] Ms. O’Doherty indicated that she had been working at Bell Canada since 1999, and since May 2009 had been employed as the assistant division head for telephone operators. She added that between 2005 and 2009, she had served as co-chair representing the employer on the local health and safety committee for the workplace in question, and for the company health and safety committee.
[37] P. Hunter indicated that he had worked at Bell Canada since 1996. At the time of HSO Renaud’s investigation, he was the systems administrative director for the FMG. He currently does the work of assistant division head in charge of technical incidents.
[38] As previously mentioned, A. Tartre is an industrial hygienist specializing in the assessment of noise exposure in the workplace.
[39] Ms. O’Doherty indicated that Bell Canada employs 110 telephone operators in its Montréal office. L. O’Doherty indicated that an employee working as a telephone operator in the Montréal office received between 400 and 500 calls a day, and took between 3 and 120 seconds to handle a call. She added that these employees worked 6.5 hours a day, including two 15-minute breaks.
[40] Ms. O’Doherty indicated that the telephone operators under her answered long-distance calls that were not automated for technical reasons or because the client decided to use an operator.
[41] Ms. O’Doherty and P. Hunter indicated that sometimes during a call, an employee will hear something other than a voice, for instance a noise from a wrong number dialed by a client (fax or modem) or a voice call accompanied by crackle or interference that might be caused by a technical problem in the circuit or on a cable because of poor weather (rain, etc.), a telephony equipment malfunction or breakdown, a client using a wireless phone far from its base or a poor quality phone or cell phone. They added that even though these became more frequent in the early 2000s with the advent of faxes, modems, cell phones and wireless phones, these noises had been around for a very long time, and in all telecommunications companies.
[42] Ms. O’Doherty and P. Hunter indicated that there were a number of sources for these noises. They also stated that Bell Canada can neither control the quality of all machines and/or equipment used by their clients, nor always manage to reroute so as to identify and eliminate the single source of a problem. This is why it is impossible to completely eliminate and/or control their occurrence. P. Hunter added that he did not see how Bell Canada could technically manage to do it.
[43] Ms. O’Doherty and P. Hunter indicated that prior to 2007, the method used to control the noises in question was to ask every employee to report them by filling out a form. This form was entitled “Strident Noises”. The FMG team then looked after compiling and analyzing the noises reported in an effort to make the links and determine their origin.
[44] P. Hunter indicated that the problem with this method was that the FMG received data after the fact, so that often, the problem no longer existed when the noises were analyzed. This is why buttons were installed in 2007 at every telephone operator’s work station to transfer calls containing a noise to a voice box. Every day, a member of the FMG listened to the calls transferred to the voice box to try to trace the origin of the noises that occurred during the calls. P. Hunter added that these days, every time a noise is heard during a call, the employee only has to hit a single button, which automatically activates the recording of the call electronically.
[45] Ms. O’Doherty indicated that between 2004 and 2007, Bell Canada insisted that employees immediately report any noises heard through their headset on the above-mentioned forms. She added that the heading “Strident Noises” on these forms, which is also used in the minutes of the local health and safety committee that were provided to HSO Renaud, do not mean that the noises coming through the telephone operators’ headsets were strident or loud noises. As Ms. O’Doherty indicated, this term was chosen to name all of the noises heard by employees through their headsets without distinction. She added that Bell Canada asked employees to describe the noises on these forms to the best of their ability, based on their own perceptions, so they could find as much information as possible.
[46] Ms. O’Doherty indicated that it was also decided to ask employees to fill out a slight injury report every time a noise was reported. She added that this procedure was introduced as a preventive measure, as agreed upon with the union, but that there was no confirmation of the presence of an injury from this report.
[47] L. O’Doherty indicated that the minutes of the local health and safety committee provided to HSO Renaud contained errors. She submitted a corrected version of these documents. She reiterated that the mention of a “strident noise” in these documents simply meant that an employee had heard a non-vocal noise in her headset. She added that the mention of a “slight injury” in these documents meant that the employee had filled out a slight injury report as a preventive measure as requested by Bell Canada, or had taken a day’s leave, that is to say authorized leave for a “slight injury” without this meaning that this confirmed that an injury had occurred to the employee’s hearing. As for the mention of “disability”, L. O’Doherty indicated that this meant that the employee had taken more than a day’s leave, referred as “disability” leave, again without it meaning that there was any confirmation of an injury to the employee’s hearing. These mentions in the committee minutes do not mean that the noises heard were strident noises, nor that there was any injury to the employee’s hearing. L. O’Doherty added that even if it was reported in the committee minutes as a hazardous situation, this did not mean that there had been an injury. This simply meant that an irregular noise had been reported by an employee.
[48] L. O’Doherty indicated that the great majority of employees were not disturbed by the noises coming through their headsets, and are no more so today.
[49] According to the corrected version of the minutes of the local health and safety committee submitted by L. O’Doherty, seven employees, including M.-J. St-Arnaud, were away from work for more than a day between May 21, 2004 and November 22, 2005 following the occurrence of a noise in their headset. Then, between December 16, 2005 and October 16, 2007, several employees filled out a report of slight injury or were away for a day after having reported a noise. Yet, between October 19, 2007, and August 5, 2009, no employee reporting a noise either reported a slight injury or was away from work. On August 7, 2008, A. Castonguay reported, as indicated above, a disabling injury related to a noise that had come through her headset. Finally, between August 8, 2008 and November 16, 2009, five employees were absent from work for more than a day following a noise heard through their headset, which excluded A. Castonguay on September 9, 2009. Between February and September 9, 2009, inclusively, the employees, other than A. Castonguay, who were absent for more than a day, were J. Michaud, S. Anctil, S. Lesage, Ms. Sylvie Dinel and Ms. Diane Vézina.
[50] L. O’Doherty indicated that, on September 9, 2009, D. Vézina had made a claim for a disabling injury to her hearing to the CSST after hearing a noise that she perceived as a strident noise through her headset.
[51] P. Hunter and A. Tartre indicated that the equipment used before February 2009 at each telephone operator’s station was the Intelligent Work Station (IWS). In February 2009, Bell Canada decided to change this equipment for the Multimedia Work Station (MWS). Given that the telephone operators had five headset models to choose from, the model chosen for A. Castonguay for her gradual return to work was the “H251 N”. Thus, this is the equipment she was using at the time of her refusal to work.
[52] P. Hunter and A. Tartre indicated that the difference between the IWS and the MWS was in the connection. The MWS connection provides two sound protection devices. A sound limiter is integrated into every headset, regardless of the model, and this limiter sets a maximum level of 118 dBA for all incoming sounds. This device also eliminates all sound frequencies around and over 4000 Hz. In addition to this protection on all headsets, the MWS also offers a filter known as the “DA-60”. The “DA-60” is directly connected to the employee’s workstation, which makes it possible to hear an incoming sound ahead of time. According to the filter manufacturer’s specifications, every time a sound of 110 dB or over comes in, the “DA-60” filter automatically reduces this sound within a quarter of a second by 28 dB before it enters the headset.
[53] A. Tartre reported that he had assessed the noise exposure to which telephone operators working in the facility could be subject during their work day, and that he had also assessed the noises occurring in their headsets and their acoustic pressure levels. He had submitted the reports on these assessments. These documents are dated August 6 and 24, 2010. To do this, A. Tartre obtained 13 recordings of calls that had been transferred to the FMG electronically as “wav” file digital recordings while employees were using the MWS equipment. Each of these calls contained a non-vocal noise that occurred when a call was taken. One of these samples was analyzed by the Institut de recherche en santé et sécurité au travail (IRSST), and the other 12 by Soft dB, a firm specializing in this area.
[54] A. Tartre indicated that the analysis of these recordings revealed that non-vocal noises in the telephone operators’ headsets were continuous or fluctuating noises. He added that when a continuous or fluctuating noise is assessed, given that the human ear does not react in the same manner to the different frequencies generated by a sound, it is important to take into consideration the continuous frequencies in these noises. This is why, as indicated by A. Tartre, the unit of measurement of the levels of acoustic pressure for the continuous or fluctuating noises is expressed in dBA.
[55] A. Tartre indicated that the frequencies are defined by scales called “octave bands”. He added that if the continuous or fluctuating noise contains predominant frequency bands, a value of 5 has to be added to the acoustic pressure levels measured in dBA for this noise. A predominant frequency band exists when the maximum sound level measured in dB at a central band exceeds 4 dB or plus the arithmetic average of the levels of the inferior and superior octaves, and for the extreme bands whose level exceeds by 5 dB that of the contiguous octave.
[56] A. Tartre indicated that since there is a reverberation in the skin and tissues of the auditory canal and in the pinna when a sound penetrates it directly, and that this phenomenon influences the manner in which the ear perceives a sound, two parameters also have to be considered when we want to measure the level of acoustic pressure of a sound coming into the ear of a person wearing a headset. The first is the Drum Reference point (DRP). The second is the Ear Reference Point (ERP). As indicated by A. Tartre, there is an internationally recognized protocol that takes these two parameters into consideration. This protocol is called the HATS protocol. Given that this protocol requires the use of a Head and Torso Simulator (HATS), a mannequin with a standardized artificial ear, this expertise is not readily accessible. To calculate the noise exposure and the acoustic pressure levels to which the telephone operators wearing a headset could be exposed, A. Tartre chose to use HATS charts published by Bruel & Kjaer. He indicated that these charts enabled him to convert into ERP the acoustic pressure levels of sounds and noises evaluated by the IRSST and Soft dB from recordings of calls received by telephone operators using the MWS equipment mentioned above.
[57] A. Tartre indicated that the analysis of the 13 recordings mentioned above revealed that no sound or noise had been generated, even when a non-vocal noise occurred when a call was taken, above 3600 Hz. This is due to the integrated sound limiter in every headset by the MWS equipment, which, as indicated above, eliminates every sound at a frequency around 4000 Hz or higher. Yet, as indicated by A. Tartre, a strident or sharp noise is around 4000 Hz or higher. This is why A. Tartre indicated that the noises coming through the headsets during HSO Renaud’s investigation could not be strident noises, and that these noises did not fall into the category of disruptive noises.
[58] A. Tartre indicated that he had calculated the worst case scenario for the level of the employees’ noise exposure during their 6.5 hours of work, factoring in two 15‑minute breaks during this period, the maximum sound level measured in the surroundings, that measured in the hearing range of employees while they took calls and the presence of disruptive noises in their headsets if the call volume had been 10, and the ERP factor. He had calculated this level of exposure as 72.3 dBA. Given that a value of 5 had to be added to take into consideration the presence of predominant frequency bands, the final result came to 77.3 dBA. A. Tartre added that he had also calculated, based on the same parameters mentioned above, the worst scenario of the level of noise exposure that could have been produced at Ms. Castonguay’s work station, which was surrounded by dividers, on her work day of September 9, 2009 if she had worked her full shift. According to these calculations, this level of exposure is 72.2 dBA. Here again, a value of 5 must be added, giving 77.2 dBA.
[59] A. Tartre indicated that, according to Part VII of the Canada Occupational Health and Safety Regulations (COHSR), the permitted limit is 87 dBA for an eight-hour exposure in every 24-hour period. Based on the results indicated above, it was found that in their work, even under the worst scenarios, the level of noise to which telephone operators are exposed is well below the standard applicable under the Code at the time of the investigation by HSO Renaud.
[60] A. Tartre indicated that he had calculated the maximum acoustic pressure level and duration to which A. Castonguay might have been exposed at the time when she refused to work upon hearing the noise in her headset, taking into consideration that the call volume could have been 10, and that she was using the “H251 N” headset equipped with a “DA-60” filter. He calculated that these levels could initially have been around 105.8 dBA for approximately one-quarter of a second, and then between 75 and 94.8 dBA for two seconds. With the value of 5 added as noted in paragraph 55 to take into consideration the presence of predominant frequency bands, the maximum levels could have been 110.8 dBA for approximately one-quarter of a second, and between 80 and 99.8 dBA for two seconds.
[61] P. Hunter indicated that they had the Plantronics company, the manufacturer of the MWS, assess the “DA-60” and the “H251 N” headset used by A. Castonguay at the time of her refusal. P. Hunter filed the report on this assessment. According to this report, these instruments had no defects and were working according to the manufacturer’s standards at that point.
[62] P. Hunter indicated that the FMG team had been involved in adding the dividers to Ms. Castonguay’s work station. He added that the dividers had also been installed at the work station of another telephone operator, Ms. Sylvie Dinel.
[63] P. Hunter indicated that Bell Canada had asked the FMG team to determine whether it was possible to block the volume of calls before they reached the headsets at a certain level directly on the “DA-60”. This led to the installation at every employee work station of the new system that automatically blocks the volume of calls at 5 out of a maximum 10. P. Hunter added that at level 5, the volume in the headset was low. This was why several telephone operators had complained that this volume was too low. They then returned to the previous mode. However, they left the volume at 5 for incoming calls at Ms. Castonguay’s workstation and that of S. Dinel. Thus, when Ms. Castonguay refused to work, the calls coming into her headset were blocked at a maximum level of 5. If this volume was too low, it could be raised as high as 10. L. O’Doherty added that in order to ensure that Ms. Castonguay did not receive any calls at a volume greater than level 5, every type of call that could not automatically be reset to this volume when it came in, that is to say the “CAMA” calls, was rerouted from her workstation.
[64] P. Hunter indicated that at the time of Ms. Castonguay’s refusal, the FMG was running tests from the stations of employees who had agreed to participate in them, to find out at which levels the volume of a call could be blocked. P. Hunter indicated that based on these tests it was decided to block the call volume at three positions: 5, 6.8 or 7.4 according to the employee’s preference. Today, every new call, except for “CAMA” calls, comes in at a volume of 5, which is where the “DA-60” blocks it. Then, employees can adjust the volume at 6.8 or 7.4 but no higher. “CAMA” calls come in at 5, 6.8 or 7.4, but no higher. Employees can then adjust the volume without exceeding 7.4.
[65] L. O’Doherty indicated that at the time of the hearing into this case, Bell Canada had hired an expert to find permanent solutions for Ms. Castonguay and for the other employees working as telephone operators in the facility in question and indicating sensitivity to noises coming from the headset. However, she added that Ms. Castonguay was still off work because of an injury to her hearing, and had been since September 2009.
[66] Based on this evidence, Ms. Lauzon maintained that, since the regulatory requirements for hearing protection had been met on September 11, 2009, there was no danger to the employees in question at the time of the investigation by HSO Renaud.
[67] Ms. Lauzon maintained that, in addition, it is not because a claim is accepted by the CSST that we can automatically conclude that there was a work-related injury for the employee who made this claim. In fact, Ms. Lauzon maintained that An Act respecting industrial accidents and occupational diseases (AIAOD) contains a presumption in regard to an injury that may have occurred at work.
[68] Moreover, Ms. Lauzon maintained that the definition of “industrial accident” under the AIAOD is distinct and in no manner connected to the definition of “danger” under the Code.
[69] Based on the preceding, Ms. Lauzon maintained that HSO Renaud erred in concluding that there was a danger to the telephone operators working in that location. For this reason, she requested that the direction issued to Bell Canada on September 11, 2009 be rescinded.
B) Respondent’s submissions
[70] Mr. Yves Ménard maintained, on behalf of the respondent, that the term “strident noise” was not invented by the telephone operators, but rather was used by the employer itself in every report concerning noises reported by telephone operators as coming from their headsets, as well as in the minutes of the local health and safety committee and in the headings of forms distributed to employees to report these noises. According to Y. Ménard, before 2004, it might be appropriate to talk about “bruits dérangeants” (disruptive noises). However, as of 2004, given that strident noises had been reported by telephone operators, these noises, in the opinion of Mr. Ménard, were strident noises.
[71] While admitting that it was impossible to eliminate these noises, Y. Ménard maintained that they could be prevented, which, in his opinion, would make it possible to refuse to work under the Code under the circumstances. Moreover, this right is not only to prevent an imminent danger, but also, in the opinion of Mr. Ménard, when one believes that it is possible that a danger exists.
[72] In addition, although the noises in question sometimes occur unpredictably and that this situation could, to some degree, be qualified as current, Y. Ménard maintained that in this case it was a matter of strident noises and that these were not identifiable. In the opinion of Mr. Ménard, this was not a normal situation.
[73] In addition, even though Bell Canada appealed the decision by the CSST’s administrative review branch concerning the event of August 7, 2008, and that it was awaiting a hearing with the CLP on this appeal, Y. Ménard pointed out that the CSST had accepted the injuries to Ms. Castonguay’s hearing as having occurred in the course of her work, not only following the event reported on August 7, 2008, but also following that on September 9, 2009, which includes treatments for hyperacusis and all of its sequelae.
[74] Moreover, Y. Ménard maintained that M.-J. St-Arnaud had been approved by the CLP as having suffered work-related injuries to her hearing as a result of an event that occurred under circumstances similar to those of Ms. Castonguay. In support of this argument, Mr. Ménard referred to the above-mentioned CLP decision in Bell Canada et Marie-Josée St-Arnaud. Paragraphs 6, 7, 8, 9, 11, 16, 19, 21, 22, 34, 39, 41, 49, 52 and 67 of this decision state the following:
[Translation]
[6] The worker is employed by Bell Canada […] Since 2002, she has been a long-distance telephone operator. […]
[7] As a long-distance telephone operator […] Her work simply involves taking incoming calls.
[8] […] The worker has a headset for receiving calls. […]
[9] On June 14, 2004, the worker submitted a claim to the CSST alleging that she had suffered a work-related injury on May 21, 2004.
[11] On May 21, 2004, before hearing the strident noise, she received a call from a woman who was speaking very softly. She set the volume of her headset to the highest level. And with the next call, there was a strident noise that she described as a sudden braking sound.
[16] […] the worker met Dr. K. Vo-Doan, otorhinolaryngologist. […]
[19] Dr. Vo-Doan prepared […] a medical assessment report in which she explained that following the strident noise heard on May 21, 2004, the worker suffered from a bilateral tinnitus and subjective hyperacusis. These symptoms disappeared the following day, but the worker still had an otalgia
[21] At the employer’s request, the worker is referred to Ms. Sylvie Auger, audiologist, for an assessment, as well as to Dr. C. Nadeau, otorhinolaryngologist, for medical expertise.
[22] In her report of August 12, 2004, Ms. Auger […] noted the absence of otologic
[34] The audiological diagnostic impressions for Ms. Auger indicate that the worker suffered from a severe hyperacusis induced by two succeeding acoustic traumas that happened at work.
[39] And the worker was examined by Dr. N. B. Gagnon, otorhinolaryngologist […].
[41] […] Dr. Gagnon defines hyperacusis as an auditory difficulty that […] consists of an abnormal increase in the perception of the intensity of sounds. […] People with hyperacusis find that every noise is loud, even those that most people would consider soft.
[49] On October 31, 2005, Dr. Vo-Doan prepared a complementary report in response to the expert opinion prepared by Dr. Gagnon […]. Based on the definition used in the literature, she believes that the worker suffered an acoustic shock on May 21, 2004. This is a less well-known entity than acoustic trauma, and is defined as a temporary or permanent disturbance in the way the ear or the nervous system works, which can happen to the user of a telephone receiver through a sudden increase in acoustic pressure […] It was after this acoustic shock that the worker felt different symptoms that have now disappeared, including a bilateral tinnitus, a hypoacusis and headaches, and later a hyperacusis. This is the only residual symptom that the worker still has. Half of the patients with this condition have to change their work for a calmer situation.
[52] She believes that in this case there are objective factors supporting the existence of hyperacusis. […] In the absence of an otological history or previous activity that could lead to cochlear damage, she presumes that the PDÉOA anomalies stemmed from the acoustic trauma suffered by the worker on May 21, 2004. As part of this trauma, the damaged external ciliated cells would be at the root of the hyperacusis.
[67] […] Since November 7, 2006, she has held a clerical position with the employer in a calmer environment. The worker indicates that she was incapable of returning to her work as a telephone operator even though she liked the work […].
[75] Based on the preceding, Y. Ménard maintained that Ms. Castonguay not only had the right to refuse to work, but also that there was a danger for her and for her colleagues during the investigation by HSO Renaud. In support of this thesis, Y. Ménard called D. Giroux and A. Castonguay to testify. I accept the following from their testimonies.
[76] D. Giroux indicated that she was the unit assistant. She was also the co-chair representing employees on the local health and safety committee at the Montréal call centre, and a member of the health and safety committee for the company. As for A. Castonguay, she had been a telephone operator with Bell Canada since 1981.
[77] D. Giroux indicated that to his knowledge, the local health and safety committee for Montréal had been working on strident noises since 2004.
[78] A. Castonguay indicated that at the time of her refusal, she had received a collect call with a request for telephone assistance. When she received the call, she first placed the incoming call. The call volume was 5 at that point. Then, she entered the number to reach the requested party, and announced the call as well as the person’s name. Since she could not hear the requested party very well, she raised the volume. That was when she heard a very loud strident noise in her headset. She added that this noise hurt her. A. Castonguay indicated that she did not know how high she had raised the sound volume.
[79] Based on this evidence, Y. Ménard alleged that Ms. Castonguay has reasonable grounds to exercise her right to refuse.
[80] By basing himself on the fact that Mr. Tartre had not used the HATS protocol, and that his calculations were based on noises recorded several months after September 9, 2009, as well as under circumstances that, in his opinion, were different from those that existed on that day, Y. Ménard further challenged the findings of the evaluations presented by A. Tartre. Y. Ménard also pointed out that Mr. Tartre’s conclusions did not refer to the acoustic shocks or traumas that happened to the employees.
[81] For these reasons, Y. Ménard asked that the employer’s request be dismissed, and that the direction of danger issued on September 11, 2009 to Bell Canada by HSO Renaud be confirmed.
Request for additional information
[82] On September 17, 2010, following the hearing on the evidence presented by the parties, I indicated to Ms. Lauzon and Y. Ménard my wish to hear one or more experts on the hearing condition known as hyperacusis of which A. Castonguay is suffering.
[83] Neither Mr. Lauzon nor the representatives of the Communications, Energy and Paperworkers Union of Canada (CEP/FTQ) offered to provide me with this additional evidence, even after Mr. Ménard conveyed my request to them.
Objection raised by the appellant
[84] Appended to his written final arguments submitted on November 18, 2010, Y. Ménard, on behalf of the respondent, submitted a series of documents that had not been filed during the hearing. In his written reply of November 25, 2010, Ms. Lauzon objected to the tabling of these documents.
[85] After having heard the arguments of Ms. Lauzon and Y. Ménard on this objection during a conference call on December 15, 2010, I decided that I would not take these documents into consideration for the following reasons.
[86] The documents date back to October 2009 and January 6, February 19 and March 12, 2010. Thus, it was possible, as admitted by Y. Ménard, to submit them during the hearing. Moreover, I believe that their contents would not add any substantial evidence that could significantly influence me regarding the outcome of this case.
Analysis
[87] The issue in this case is whether the direction of danger issued on September 11, 2009 to Bell Canada by HSO Renaud and aimed at all phone operators working in the facility was well founded.
[88] In order to determine the merits of this direction, I must decide whether a danger existed for these employees on September 11, 2009.
[89] The term “danger” is defined as follows in subsection 122(1) of the Code:
“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;
[My underline]
[90] With regard to the applicable test for determining the presence of an existing or potential hazard within the meaning of subsection 122(1) of the Code, Gauthier J. of the Federal Court, at paragraph 36 of her decision in Verville, stated as follows:
[36] In that respect, I do not believe either that it is necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. I do not construe Tremblay-Lamer’s reasons in Martin above, particularly paragraph 57, to require evidence of a precise time frame within which the condition, hazard or activity will occur. Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one. [My underline]
[91] Similarly, in Martin, Rothstein J. of the Federal Court of Appeal had this to say:
[37] I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weight the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.
[My underline]
[92] The grounds for the danger direction issued to Bell Canada by HSO Renaud were that he believed that an acoustic trauma could occur on September 11, 2009 to any of the telephone operators working in the facility because of the non vocal noises in their headsets, which, according to him, could be of very high acoustic pressure levels.
[93] In order to determine whether such a danger existed for the telephone operators in question at the time of the investigation by HSO Renaud, and referring to the definition of the term “danger” set out in the Code (supra) and the interpretation of that definition made by Gauthier J. in Verville, I must:
1) identify the hazards associated with the duties of telephone operators that could injure their hearing;
2) determine whether there was a reasonable expectation that, at the time of the investigation by HSO Renaud, these hazards could have injured their hearing before these hazards were corrected.
Hazards that could injure the hearing of telephone operators
[94] Given that the danger identified by HSO Renaud was related to the noises coming through the headsets of the telephone operators in question, I referred to the standards on hearing protection in the Code to help me identify the hazards that could injure the hearing of these employees.
[95] Section 7.4 of Part VII of the COHSR associated with the Code reads as follows:
7.4 No employee in a workplace shall, in any 24 hour period, be exposed to
a) an A-weighted sound pressure level set out in column I of the schedule for a duration of exposure exceeding the applicable duration set out in column II; or
b) a noise exposure level (Lex, 8) that exceeds 87 dBA.
[My underline]
[96] In referring to these regulatory provisions in the COHSR, I gather that a level of noise exposure in the course of an employee’s work day that exceeds 87 dBA for 8 hours of exposure could injure that employee’s hearing. I also understand that noises of an intensity and duration that exceed the limits found in the Schedule to Part VII of the COHSR and come through the headset of a telephone operator can also damage that employee’s hearing.
[97] Based on the preceding, I gather that in order to conclude that the hearing of telephone operators could have been injured on September 11, 2009, I must determine whether at that moment there was a reasonable possibility that:
1) the noise exposure level in the course of their work day exceeded the limit of 87 dBA for 8 hours of exposure pursuant to paragraph 7.4(b) of the COHSR;
2) a noise at an intensity level and duration exceeding the limits prescribed in the Schedule to Part VII of the COHSR would occur in their headset;
and all before those hazards could be corrected.
The possibility that the level of noise exposure in the course of the telephone operators’ work day exceeds 87 dBA for 8 hours of exposure
[98] According to the evidence submitted by the Bell Canada expert, the worst scenario at the time of the investigation by HSO Renaud of the level of noise exposure in a 6.5 hour period of work per day, – taking into consideration the two 15-minute breaks during this period, the maximum sound level measured in the surroundings, the sound level measured in the range of hearing of employees taking calls, the ERP factor, the presence of noise in their headsets if the call volume had been set at 10 and the presence of predominant frequency bands in these noises – , is approximately 77 dBA.
[99] In addition, I have received no evidence to contradict the testimony of this expert regarding these calculations.
[100] Based on the preceding, I find that on September 11, 2009 there was no reasonable possibility that the level of noise exposure during the day of work of the telephone operators in question could have exceeded the limit prescribed in paragraph 7.4(b) of the COHSR indicated above.
The possibility of occurrence in the telephone operators’ headsets of a noise of an intensity and duration exceeding the limits prescribed in the Schedule to Part VII of the COHSR
[101] According to the stipulations in the Schedule to Part VII of the COHSR, an employee may not be exposed to a sound or noise of 111 dBA for more than 115.2 seconds or to a sound or noise of 100 dBA for more than 24 minutes per 24-hour period.
[102] According to the calculations presented by A. Tartre, the maximum levels of acoustic pressure from noises coming through their headset and the maximum length of time for which the telephone operators in question would have been exposed on September 9, 2009, based on the fact that the call volume may have been at 10 with an “H251 N” headset coupled with a “DA-60” filter, at first would have been approximately 110.8 dBA for approximately one quarter of a second, and then approximately 99.8 dBA for two seconds.
[103] Here again, I point out that I have received no evidence to contradict this expert’s calculations.
[104] Moreover, the evidence shows that Mr. Tartre’s calculations were based on the analysis of calls containing non-vocal noises that were recorded while employees were using the MWS equipment, which included integrated sound protection devices in their headsets regardless of the model, as well as the “DA-60” filter at their work station.
[105] Based on this evidence, I find that on September 11, 2009, there was no reasonable possibility for the noises coming through the headsets of the telephone operators in question to be at a level of intensity and duration that exceed the limits prescribed in the Schedule to Part VII of the COHSR.
[106] Based on the preceding, I find that on September 11, 2009 there was no danger to the telephone operators working in the facility from the noises coming through their headsets, and consequently that the direction issued at that time by HSO Renaud to Bell Canada was not justified.
[107] This having been said, I would like to highlight the following in connection with the case of Ms. Castonguay, the only telephone operator working in the facility who exercised her right to refuse to work at the time of the investigation by HSO Renaud.
[108] The evidence submitted indicates that since March 30, 2009, A. Castonguay returned from sick leave due to an injury to her right ear that had caused her hyperacusis.
[109] According to the documents filed by Mr. Préfontaine, the otorhinolaryngologist who examined A. Castonguay believed that she would continue to have sequelae of hyperacusis.
[110] According to these documents, in July and August 2009, A. Castonguay also heard very loud noises and noises that she described as strident coming through her headset while she was using her left ear to take calls.
[111] Moreover, the danger alleged by A. Castonguay in support of her refusal to work on September 9, 2009 is that, in view of the injury to her right ear, she was afraid for her left ear, which she used to take calls because she had heard a very loud noise through her headset that she had described as strident and that hurt her.
[112] Subsection 128(1) of the Code reads as follows:
128.(1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that
a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee, or
b) a condition exists in the place that constitutes a danger to the employee, or
c) the performance of the activity by the employee constitutes a danger to the employee or to another employee.
[My underline]
[113] In referring to these provisions in the Code, I gather that in order to refuse to work under the Code, an employee needs only to have reasonable cause to believe that the use of a thing, in this case a headset that transmitted a noise that was perceived by the employee as being very strident and that hurt her, constitutes a danger, even if this danger only concerns that employee. I also understand that the belief related to a refusal to work is subjective to the employee who is refusing to work.
[114] In addition, based on the documents filed by Mr. Préfontaine, there had been no evaluation by a specialist of Ms. Castonguay’s work station in preparation for her gradual return to work and at the time of the investigation by HSO Renaud in order to adapt it given her hyperacusis. Moreover, based on those same documents, the measures introduced for Ms. Castonguay’s gradual return to work in March 2009 did not take into consideration the opinion from her audiologist that recommended against this employee’s gradual reintegration into her job as a telephone operator in view of her hyperacusis.
[115] Based on the above, everything suggests that Ms. Castonguay was hypersensitive to sounds and noises at the time of her refusal. However, despite my attempt to obtain such evidence, I have received no proof from any expert about the link between this hypersensitivity to sounds or noises and the working conditions described above under which A. Castonguay was working at the time of her refusal. I believe that this link is essential to deciding whether these working conditions were the likely cause of the injuries diagnosed in her left ear by her general practitioner and her audiologist on September 10, 2009.
[116] In view of the preceding, and given that I concluded that the danger direction issued by HSO Renaud to Bell Canada that covered all telephone operators in the facility was unjustified, I have decided to rescind this direction.
Decision
[117] For these reasons, the direction issued on September 11, 2009 to Bell Canada by HSO Renaud is rescinded.
Katia Néron
Appeals Officer
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