2011 OHSTC 13
Citation: Canadian National Railway Company, 2011 OHSTC 13
Date: 2011-06-23
Case No.: 2011-08
Rendered at: Ottawa
Between:
Canadian National Railway Company, Appellant
Matter: Appeal under subsection 146(1) of the Canada Labour Code of directions issued by a health and safety officer.
Decision: The directions are rescinded.
Decision rendered by: Ms. Katia Néron, Appeals Officer
Language of decision: French
For the appellant: Mr. Michel Huart, Counsel
REASONS
[1] This decision concerns an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) by the Canadian National Railway Company (CN).
[2] This appeal was filed against a direction identifying a danger issued on January 31, 2011 to CN by Health and Safety Officer (HSO) Mr. Alain Testulat and against the directions issued the same day to 52 of its employees working at the Taschereau shunting yard in Montréal (Quebec).
Background
[3] What follows has been taken from the testimony of HSO Testulat, his investigation report and the related documents, and from the testimony of Mr. Mike Tucci, operations manager at the automobile loading ramp of CN’s Taschereau shunting yard in Montréal (Quebec).
[4] The activity performed by the employees in question consists of unloading automobiles that are transported by train in rail cars comprised of two or three levels, also referred to as multi‑level automotive railcars.
[5] There are three levels per rail car for the transportation of cars. There are two levels for the transportation of other types of automobiles, such as vans, which are higher.
[6] In any given rail car, the front of the automobiles all point in the same direction.
[7] However, from one rail car to another on the same train, the automobiles are not necessarily placed in the same direction and the number of levels that each rail car contains may not be the same.
[8] This means that, in order to unload the train, employees first have to use locotractors to sort and gather together the rail cars with the same number of levels and in which the automobiles all point in the same direction.
[9] Once this sorting has been completed, the rail cars are grouped together in groups of five or six. A ramp is then attached to the end of each group of rail cars so that they can be unloaded.
[10] The height of each level in the rail cars is:
Levels |
Bi-level car
Height from ground |
Tri-level car
Height from ground |
1st |
3.2 feet
|
3.5 feet |
2nd |
10.6 feet
|
7.8 feet |
3rd |
---------- |
13.1 feet |
[11] In addition, the steel parts used to the rail cars to each other are at approximately the same height as the first level of the rail cars.
[12] Portable bridge plates are used to move the automobiles between the rail cars to reach the unloading ramp. These bridge plates are installed by the employees.
[13] Each bridge plate is made of steel and weighs about 40 pounds. They are 219/16 inches wide and 56 inches long. Their floor is covered with a slip resistant coating.
[14] Before installing the bridge plates, employees measure the distance between each rail car. This distance must be between 41 and 49 inches. If this is not the case, the rail cars are either moved closer together or further apart until the proper distance is achieved.
[15] The bridge plates are then installed on each level between the rail cars beginning with the highest level.
[16] Given the width of each bridge plate, employees must install not one, but two bridge plates parallel to each other between the rail cars. Once the bridge plates have been installed, there is a space between them that is wide enough for the wheels of the automobiles to roll onto the bridge plates.
[17] Once the bridge plates have been installed between the highest levels of the rail cars, the automobiles at that level are unloaded. Each bridge plate is then lowered and installed at the next lower level. Once the bridge plates have been reinstalled, the automobiles at that level are unloaded. If there are three levels in the rail cars, it is not until the automobiles at the second level have been unloaded and the bridge plates lowered and installed between the lowest levels that the automobiles at that level are unloaded.
[18] Since the wheels of the automobiles are held in place with a block to prevent them from moving during transport, these blocks must be removed in order to unload the automobiles.
[19] The employees also move each automobile to the unloading ramp.
[20] To carry out these tasks, employees must enter each of the rail cars and also move from one rail car to another.
[21] During a workplace inspection on September 7, 2010, HSO Testulat observed that the bridge plates installed between levels at the same height in the rail cars were not only used by employees to move the automobiles from one rail car to another, but also to walk between the rail cars. Since, as indicated earlier, the third level of tri‑level cars and the second level of bi‑level cars are over 2.4 metres (8 feet) above ground, employees using the bridge plates installed between these levels find themselves at a height of more than 2.4 metres (8 feet) above the ground when crossing on them. HSO Testulat also observed that no fall‑protection system was being used by the employees during this manoeuvre.
[22] Based on these observations and referring to the provisions of the Canadian Occupational Health and Safety Regulations (COHSR), Part XII, HSO Testulat determined that CN was in contravention of paragraph 12.10(1)(a) of the Regulations. He had the departmental manager at the workplace sign an assurance of voluntary compliance (AVC), requesting that he be informed by September 21, 2010 of the steps taken to correct the situation. The AVC reads as follows:
[Translation]
Employees cross from one rail car to another on the bridge plates located more than 2.4 metres above ground without a fall‑protection system (COHSR 12.10(1)(a)).
[23] Following this AVC, CN prohibited its employees working at the site from using the bridge plates to cross from one rail car to another. Referring to the provisions of subsection 12.10(1.1) of the COHSR, CN decided, in response to the AVC, to carry out a job safety analysis with the involvement of its local workplace health and safety committee.
[24] That analysis determined that the safest way for employees to move between the rail cars was not to use the ladders attached to the outside of the rail cars but to use the bridge plates. CN therefore developed, still with the involvement of its local workplace health and safety committee, a procedure to protect employees from the potential risk of a fall when using these bridge plates. That procedure requires them to always have three points of contact when crossing.
[25] During a second site visit on January 10, 2011, HSO Testulat saw three employees not complying with that procedure. During his testimony, HSO Testulat admitted that the three employees in question were crossing bridge plates installed between the lowest levels in the rail cars and thus at a height of less than 2.4 metres above ground.
[26] Following these observations, HSO Testulat temporarily agreed to the bridge plates being used by employees to cross from rail car to rail car while verbally asking CN to send him a copy of the job safety analysis and to provide training to all employees on the three-contact‑point technique.
[27] On January 10, 2011, HSO Testulat also used a video camera to film employees crossing bridge plates at more than 2.4 metres above the ground.
[28] On January 11, 2011, CN sent HSO Testulat a copy of its job safety analysis. The document entitled, “[Translation] Risk analysis – COHSR Section 12.10(1)(a) – Automobile ramp – Montréal”, and dated October 2010.
[29] On January 14, 2011, HSO Testulat reviewed this document and the video taken on January 10, 2011.
[30] In his investigation report, HSO Testulat indicated that he did not believe that the job safety analysis submitted by CN had taken into account all of the circumstances that could occur when crossing the bridge plates, especially in the event of rain, snow, wind or ice.
[31] HSO Testulat also indicated in his report that he observed from the video taken on January 10, 2011 that employees preparing to cross the bridge plates first gripped the handle of the rail car they were leaving. While maintaining that hold, they walked onto the bridge plate, placing only one foot at a time on the floor surface, until they reached the handle of the other rail car. According to HSO Testulat, it was not until then that both of their hands were holding onto the handle and their two feet were in contact with the floor of the bridge plate.
[32] However, during his testimony, HSO Testulat admitted that the same video showed that the three-contact-point crossing was and could be used by employees when using the bridge plates to move from rail car to rail car. However, in the opinion of HSO Testulat, the three‑contact‑point technique is a job safety technique that can only apply for climbing up and down a ladder, not for crossing bridge plates.
[33] On this basis, HSO Testulat determined that there was a danger to employees using the bridge plates to cross from one rail car to another and issued a direction to CN ordering it to immediately protect employees against this danger. He also issued the 52 employees working at the site a direction prohibiting from using the bridge plates to cross from one rail car to another.
[34] The direction issued on January 31, 2011 to CN by HSO Testulat reads as follows:
[Translation]
The health and safety officer is of the view that performing an activity constitutes a danger to an employee at work, specifically:
Walking from one rail car to another, at a height of more than 2.4 metres above the nearest permanent safe level, on a walkway (portable bridge plate) designed for the transfer of 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 against this danger.
Pursuant to subsection 145(3), a notice bearing number 3759 has been affixed [to the] bulletin board [of the] employees’ 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 to perform the activity in question until these directions have been complied with.
[35] The direction issued the same day to each of the 52 employees working at the site reads as follows:
[Translation]
The health and safety officer is of the view that performing an activity constitutes a danger to an employee at work, specifically:
The fact that [employee’s name] can walk from one rail car to another, at a height of more than 2.4 metres above the nearest permanent safe level, on a walkway (portable bridge plate) designed for the transfer of automobiles, creates a risk of falling that could lead to serious injury, or even death.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph [subsection] 145(2.1) of the Canada Labour Code, Part II, to cease performing the activity in question until your employer has complied with the directions issued pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take steps to protect any person from this danger.
[36] On February 7, 2011, Mr. Michel Huart, on behalf of CN, filed an appeal of these directions. In his application to appeal, Mr. Huart also requested a stay of the implementation of the directions.
[37] Following a teleconference on February 14, 2011 at which I heard the arguments of Mr. Huart, as well as those of Mr. Claude Benoît, the union representative for the employees in question, who supported the appeal and the application for a stay filed by Mr. Huart, I decided not to grant a stay of the directions until final disposition of this matter.
[38] This matter was heard on February 24, 2011 at Montréal.
Supplemental evidence
[39] At the end of the hearing on February 24, 2011, I informed Mr. Huart that I was interested in receiving expert evidence on the issue concerning the impossibility of providing fall‑protection equipment for the execution of the manoeuvre in question. Following my suggestion, Mr. Huart agreed to provide me with this supplemental evidence through written submissions.
[40] In addition, during a teleconference on March 3, 2011, I informed Mr. Huart that I was interested in supplemental evidence on the potential risk of falling that, in my opinion, also exists when employees are installing the bridge plates. We agreed that that evidence would also be provided to me through written submissions.
Issue
[41] The question to be decided in this matter is whether the directions issued on January 31, 2011 to CN and to 52 employees performing the activity in question are well-founded.
Submissions of the parties
A) Appellant’s submissions
[42] Mr. Huart argues, on behalf of the appellant, that there are two questions in this matter. In his view, these questions are:
(1) Does section 12.10 of the COHSR apply to this situation?
(2) Was there a danger on January 31, 2011 justifying the directions issued pursuant to section 145 of the Code?
[43] As for the first question, Mr. Huart argues that section 12.10 of the COHSR does not apply in the present case.
[44] In support of this position, Mr. Huart referred to the decision of the Ontario Court in R. v. Transport Provost Inc.
[45] Mr. Huart also referred to the decision of Regional Safety Officer Mr. Serge Cadieux in Transport Super Rapide Inc. and Teamsters, Local 931
[46] Furthermore, even if the concept of vehicle is now included under section 12.10 of the COHSR, Mr. Huart alleges that a rail car cannot be equated to a “vehicle” because it is on rails, it is not motorized and is limited to specific locations, for example, in this case, to a shunting yard, and therefore it is limited in its movements. Furthermore, it is Mr. Huart’s view that the work activities in this matter do not occur “on” the rail cars.
[47] For these reasons, Mr. Huart argues that section 12.10 of the COHSR cannot, any more than before, apply in this matter despite the concept of vehicle being added to this regulatory provision since its amendment.
[48] If, however, I were to decide that the resolution process set out in subsection 12.10 (1.1) applies in this case, Mr. Huart argues that it is not reasonably practicable to provide a fall‑protection system to employees when they use the bridge plates to cross from one rail car to another. In support of this claim, Mr. Huart submitted a report dated March 4, 2011 from Ms. Annie Chantelois, a civil and structural engineer, who specializes in protection equipment and systems for work at heights, and who is the president and chief executive officer of Prochute Sécurité Inc., a firm specializing in work at heights. A. Chantelois states the following at pages 3, 4, 5, 6 and 7 of her report:
[Translation]
The rail cars examined have three (3) levels, although there also rail cars with two (2) levels.
This report examines the second level of “bi” and the third level of “tri” level cars because they are more than 8 feet (2.4 m) above the ground.
[…]
In order to perform the work of unloading the vehicles from the rail cars, employees are required to remove any metal objects likely to scratch the vehicle body from their equipment […]. There is not much space between the inside walls of the rail cars and the vehicles.
A full body harness does not exclude the presence of metal buckles used to attach its various parts.
[…]
The suggested harness could have attachment accessories made from sewn straps to replace the metal buckles, […].The adjustment and attachment buckles could be metal. However, there is a way to hide them under a removable rubber covering.
[…]
With the appropriate coverings, it is possible to reconcile the wearing of the harness with the constraints imposed by CN’s automobile ramp department and thus avoid exposing metal parts to the sides of vehicles.
[…]
In order to be able to provide a worker with a safety system that meets the regulations, appropriate anchor points must be present.
The anchor points must support a minimum of 4000 lb (17.8kN) and must be located close to the transition zone, which means that the worker, using a double lanyard […], will be able to cross the section bearing a risk of falling while still being anchored. Consequently, the anchor points will have to be located in several places along the section at risk (as defined by the applicable regulations), namely, at the ends of the rail cars.
[…]
There are no studies or references that would determine if the elements on the rail cars can be used as anchor points. Moreover, there are several types of rail cars and thus, the elements that might be used for anchorage may vary depending on the configuration.
[…]
In order to use a safety system correctly (consisting of a harness, lanyard with a shock absorber, and fixed anchor points), there must be the necessary clearance under the work surface. The safety system must be able to stop the worker’s fall before the worker hits the ground or any object likely to cause injury.
It appears that at eight (8) feet (2.4m) or less from the ground, there would not be enough clearance. At the second and third levels, respectively, of a bi‑ or tri‑level car, another problem could arise if the bridge plates were left in place at the lower levels because they would limit the clearance available in the event of a fall.
[…]
In summary, Prochute confirms that there is a full body harness that meets the requirements of CN’s automobile ramp department, that is, which has no exposed metal parts.
However, this harness has not been tested in the workplace and the extent to which it is cumbersome when moving around, entering or leaving vehicles, has not been evaluated.
When wearing the harness, it is essential to consider, among other things, the location of anchor points with the strength specified by existing regulations, and a sufficiently clear height to meet the clearance required and applicable to the systems. Presently, it is not possible to deploy this system without a more detailed study regarding the existence of anchor points on all types of rail cars.
[49] In addition to this evidence, Mr. Huart claims that it is not reasonably practicable for CN to ensure that the handles attached to the end of the different types of rail cars, and which could be used as anchor points for a body harness, have the strength required by the existing regulations mentioned above. In support of this claim, Mr. Huart called M. Tucci to testify.
[50] As indicated earlier, M. Tucci stated that he was the operations manager for the unloading of multi‑level automotive railcars at the automobile ramp of CN’s Taschereau shunting yard in Montréal (Quebec). M. Tucci has 14 years of experience in this type of operations.
[51] M. Tucci stated that, even if CN could assume responsibility for the maintenance of these rail cars, the multi‑level automotive railcars that CN uses to transport automobiles do not belong to it. There are actually about 46,000 rail cars used for this activity, and they belong to different companies from across North America, including the United States. Consequently, the multi‑level automotive railcars arriving daily at CN’s Taschereau shunting yard in Montréal may not all be the same type. This is why, according to M. Tucci, he does not see how CN could ensure on a daily basis that the handles that might be used as anchor points on each rail car have the strength required for the safe use of a body harness.
[52] As for the second question mentioned earlier, Mr. Huart argues that section 145 of the Code cannot apply if section 12.10 of the COHSR does not apply.
[53] In support of this argument, Mr. Huart refers to the decision of Regional Safety Officer Mr. Douglas Malanka in Western Stevedoring Co. and International Longshoremen’s and Warehousemen’s Union, Local 500[3]. In that case, Mr. Malanka had to determine if a direction issued pursuant to subsection 145(1) of the Code was justified for a situation relating to the provisions of paragraph 12.10(1)(a) of the COHSR. Mr. Malanka determined that the direction at issue was justified, although he indicated that there had to be a situation contravening the Code in order for section 145(1) to apply.
[54] By analogy, Mr. Huart argues that, to the extent that a reasonable measure or the establishment of a safe work method can avoid a contravention of section 12.10 of the COHSR, I should conclude that a direction that refers to a danger must take into account the specific steps taken by the employer in order to determine if the danger directions issued by HSO Testulat should be confirmed.
[55] Mr. Huart further maintains that the directions issued on January 31, 2011 by HSO Testulat were based mainly on his doubts about whether employees were complying with the three‑contact‑point technique when crossing the bridge plates and about the job safety analysis, which HSO Testulat described, in his testimony, as weak. According to HSO Testulat, that analysis did not take all of the possible eventualities into consideration, which could result in employees not following the procedure.
[56] Mr. Huart argues that the doubts of HSO Testulat indicated above were unfounded on January 31, 2011 for the following reasons.
[57] First, Mr. Huart claims that the job safety analysis done by CN in co‑operation with its local workplace health and safety committee made it possible to determine that using the three-contact‑point technique on the bridge plates considerably reduces the risk of falling for an employee when moving from one rail car to another.
[58] Further, while admitting that it is clear that the analysis was not intended to eliminate the need to climb on the rail cars as provided for in subparagraph 12.10(1.1)(a)(i) of the COHSR, should I decide that that provision applies in the present case, which he disputes, Mr. Huart argues that this approach is safer than if employees were to use the rail car ladders to make these crossings.
[59] As for the risk of falling associated with the accumulation of snow, ice or the presence of rain, Mr, Huart maintains that the risk is equally present when using the ladders on the rail cars as when using the bridge plates. He further argues that steps were taken to minimize the risk when using the bridge plates to the extent possible.
[60] Second, Mr. Huart claims that, on January 31, 2011, all employees received training and instruction on the three‑contact‑point technique for crossing safely from one rail car to another using the bridge plates.
[61] Mr. Huart also argues that steps were taken by CN, on January 31, 2011, to remind each employee, prior to each shift and during the performance of their work, to follow all established safety rules to ensure their safety, notably, to comply at all times with the three‑contact‑point technique when crossing bridge plates.
[62] Mr. Huart also claims that, on January 31, 2011, the three‑contact‑point technique was developed taking into account the impossibility of using or putting in place other protection systems when employees use the bridge plates.
[63] On this basis, Mr. Huart argues that, to the extent that employees comply with the three‑contact‑point procedure when crossing the bridge plates, there is no reason for me to determine, as HSO Testulat did, that on January 31, 2011 there was a danger to employees in performing this manoeuvre that warranted the danger directions issued pursuant to paragraphs 145(2)(a) and (b) and subsection 145(2.1) of the Code.
[64] In support of these claims, Mr. Huart called M. Tucci, Mr. Sébastien Vachon, Mr. Philippe Poncin, Ms. Lucie Renaud and C. Benoît to testify. I accept the following elements of their testimonies.
[65] S. Vachon stated that he has held the position of risk management officer for CN in the Greater Montréal area since November 2009. He added that he was involved in the job safety analysis submitted to HSO Testulat at the time of his investigation.
[66] P. Poncin stated that he is a kinesiology specialist, also referred to as the science of biomechanics and movement. His work involves studying the movements made by workers when performing their tasks with the goal of improving their safety, preventing injury or helping their rehabilitation for their return to work after an injury. He has worked full‑time in this field for CN for more than 11 years as a consultant.
[67] L. Renaud testified that she is CN’s automobile ramp assistant at the Taschereau shunting yard in Montréal. She is therefore one of the employees unloading the multi‑level automotive railcars at the workplace in question. L. Renaud is also an employee representative on the local workplace health and safety committee. She was involved in the job safety analysis and in developing the three‑contact‑point procedure for crossing bridge plates.
[68] C. Benoît stated that he is the union representative for employees working at the site for the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada).
[69] M. Tucci and L. Renaud presented a video showing all of the activities performed by employees in order to unload the automotive railcars. The video shows, in particular, an employee crossing a bridge plate using the three‑contact‑point technique. The distance to be covered when making this crossing is no greater than 49 inches and the manoeuvre is done as follows. For greater clarity, the example that follows involves an employee crossing a bridge plate from left to right, using the three‑contact‑point procedure. For an employee in a rail car at the left of the bridge plate, the employee must first grip the handle of the rail car he is about to leave with both hands while keeping both feet on the floor. While keeping his hands gripped to the handle and his left foot on the floor, the employee lifts his right foot and places it outside the rail car on the floor of the bridge plate. He must then bring his left foot beside his right foot. Keeping his feet on the ground and still holding on with his left hand, the employee then lets go of the handle with his right hand and grabs the handle of the rail car located to his right. While keeping his feet on the ground, and his right hand on the handle, he then lets go with his left hand so that it joins his right one on the handle of the rail car that he wants to enter. If the employee is short, he must move his feet, one after the other, along the bridge plate while holding on with both hands, or by keeping both feet on the floor and one hand gripping the handle when he lets go with his right hand to grab the handle of the rail car toward which he is moving. When he is close to the rail car, the employee must lift his right foot from the bridge plate and place it on the floor inside the rail car while holding the handle of that rail car with both hands. Once his right foot has been placed down, he simply has to lift his left foot to bring it close to his right foot while holding the handle of the rail car that he has now entered with both hands. According to M. Tucci and L. Renaud, this is how the three‑contact‑point crossing can be done, even by a short employee like L. Renaud.
[70] M. Tucci stated that after the AVC was issued, CN issued a bulletin, which was sent to all employees, informing them to no longer use the bridge plates to cross from one rail car to another. With no other means of moving from one rail to another, employees had to use the ladders on the rail cars until the introduction on January 11, 2011 of the three‑contact‑point procedure.
[71] M. Tucci testified that, using the rail car ladders meant that, for example, in order to remove the blocks placed on the automobile wheels, employees have to climb down from a rail car using the ladder attached to it and then climb back up the ladder of the next rail car. They have to do this more than 20 times.
[72] M. Tucci stated that this also requires employees to make pivoting motions in order to enter each rail car, again more than 20 times. He added that these pivoting motions not only increase an employee’s risk of falling, but also increase the risk of other types of injuries because of the different twisting motions involved.
[73] L. Renaud and C. Benoît testified that when employees perform these pivoting motions to reach the handle inside a rail car without being able to place a foot on the bridge plates from the ladders, the risk of falling is, in their view, higher than when they could place a foot on the floor of the bridge plates to allow them to reach the handle.
[74] S. Vachon and M. Tucci stated that there have been no falls by employees using a bridge plate in the past to cross from one rail car to another.
[75] In light of this fact, S. Vachon stated that he had concluded – based on his risk analysis in the document, “[translation] Risk analysis – COSHR Section 12.10(1)(a) – Automobile ramp – Montréal”, cited earlier – that the probability of an employee falling when using this means to move from rail car to rail car is rare. He concluded that the consequences of such a risk can be critical since a fall from higher than 2.4 metres above the ground, or from above the steel parts used to couple rail cars together, may cause serious injury to an employee, such as death or a permanent disability.
[76] In light of the above information and by applying the methodology indicated in the risk evaluation table found at page 2 of the above‑mentioned document, S. Vachon stated that he had concluded that the potential risk of falling for an employee using the bridge plates to cross on foot from one rail car to another was average.
[77] As S. Vachon stated, this means that corrective steps should be taken to mitigate the risk. For this reason, a study was carried out to examine whether protective devices could be provided to mitigate an employee’s risk of falling using the bridge plates to cross from rail car to rail car.
[78] L. Renaud testified that she was involved in that study.
[79] L. Renaud stated that they tested the possibility of installing a removable metal bar with U-shaped hooks attached to the rungs of the ladders of two rail cars beside each other. During the test, it was observed that the bar added 18 pounds of weight to the bridge plates, making it more difficult for employees to install the bridge plates. It was also observed that this type of device, once installed, would be an obstacle to accessing the inside of the rail cars from the ladders, thus increasing the risk of an employee falling during that manoeuvre. Indeed, since employees have to make a pivoting motion to enter the rail cars from the ladders, the presence of a bar right in the middle would not only interfere with the execution of that motion but would also require employees to bend over while making it in order to get into the rail cars. For these reasons, this solution was not accepted.
[80] L. Renaud testified that the possibility of using a body harness was also considered. When this device was tested, it was observed that once the life line on the type of harness tested was installed, it blocked access to entering the rail cars from the ladders for the same reasons as described earlier. L. Renaud stated that this option was rejected for these reasons.
[81] L. Renaud stated that a net installed under the bridge plates was also tested. once the net was installed, it was observed to still interfere with the access into the rail cars from the ladders. In addition, since this type of protection device could not guarantee, if an employee fell, that the employee would not fall on the sides of the bridge plates not protected by the net, this solution was not accepted.
[82] L. Renaud testified that, given the above, the members of the committee charged with finding a solution to ensure the safety of employees having to cross from one rail car to another concluded that no fall‑protection system was practicable in the circumstances.
[83] L. Renaud further stated that they concluded that the least risky method for employees to move from one rail car to another was to use the bridge plates if, at least, a safety procedure was established to make crossing these bridge plates safe. According to L. Renaud, that was the purpose of developing the three‑contact‑point technique.
[84] L. Renaud stated that, in developing this procedure, the committee was inspired by the proven three‑contact‑point technique for climbing up and down a ladder and they adapted it to apply to crossing the bridge plates. She added that this was possible because of the short distance to be covered when making this crossing and the presence of handles on the ends of the rail cars.
[85] S. Vachon testified that the written procedure established by CN asks its employees to ensure that they always have three points of contact when crossing a bridge plate regardless of the height. He provided the document containing this procedure. It is found on page 6‑1 of section 6, entitled “[translation] Method for climbing up and down a rail car and crossing from one rail car to another” of CN’s document concerning its “[translation] Safety policies, procedures and rules”, updated in December 2010.
[86] S. Vachon reported that, after this procedure was put in place, P. Poncin was asked to evaluate the potential risk of injury to an employee using the rail car ladders compared to using the bridge plates to move from rail car to rail car if the three‑contact‑point procedure for crossing is followed.
[87] P. Poncin testified that he conducted that evaluation. He also provided the related report. The report is dated November 24, 2010 and is included in the document entitled “[translation] Safety policies, procedures and rules - Section 3 - Locotractors”, which was given to HSO Testulat at the time of his investigation.
[88] P. Poncin testified that a number of factors increase the risk of a fall or other injuries for an employee who is required to use the ladders on the rail cars, instead of the bridge plates, to cross from one rail car to another , provided the three‑contact‑point technique for making that crossing is followed. He reached that conclusion on the basis of the following information.
[89] P. Poncin stated that the first factor that might cause a fall or other injuries to an employee when using the ladders is the weather outside. If it is raining, snowing or there is ice, the rungs of the ladders can become slippery and the employee’s hands, even with gloves, or his feet, may slip on the rungs.
[90] P. Poncin stated that another factor that can increase the risk of falling or other injuries to an employee using the ladders is the human factor. For example, as P. Poncin reported, in the past, young employees who wanted to perform their task more quickly have fallen from the ladders. In the case of more experienced but older employees, notably those 45 years of age and older, having to frequently climb up and down ladders can result in such injuries as muscle fatigue or joint wear. Furthermore, since entering each rail car from the ladders means that employees have to execute a pivoting motion, they have to do so by twisting at the knees, ankles and back. These twisting motions, if done frequently, can cause tendonitis, knee or ankle tears, or back pain.
[91] As P. Poncin also testified, an employee’s weight and height are also human factors that can increase the risk of falling when using ladders. For example, a tall person has to contort them self even more to enter the rail car from the ladders. As already indicated, that involves twisting motions at the knees, ankles and back, which again increases the risk of injury for older workers. As for employees who are overweight, when they use the ladders, they have to keep a greater distance between their body and the rungs, which increases the risk of falling for these employees.
[92] P. Poncin stated that there is another factor that increases an employee’s risk of falling when using ladders rather than the bridge plates. As P. Poncin explained, when an employee climbs up or down a ladder, his centre of gravity shifts outward, which is not the case when using the bridge plates because, in that case, the employee is standing. Consequently, if an employee’s hand slips on a rung when climbing up or down a ladder and he lets go, he will automatically fall backwards since his centre of gravity weighs outward. However, when crossing a bridge plate, if one of his hands slips on a handle and the employee lets go, his body will remain stable on the bridge plate since his centre of gravity remains between his two feet.
[93] On this basis, P. Poncin testified that he believed that while complying with the three‑contact‑point technique it is important to ensure an employee’s safety when using the ladders and the bridge plates. If one of an employee’s hands slips and he lets go of a ladder rung, his body automatically becomes unbalanced, which is not the case should he let go of one of the rail car handles when crossing a bridge plate.
[94] P. Poncin stated that, since using ladders to move from one rail car to another increases the frequency of employees climbing up and down the ladders and increases their pivoting motions to enter the rail cars, all of the above-mentioned risk factors are accordingly increased.
[95] For these reasons, P. Poncin stated that he believes that it is less risky for an employee to use the bridge plates than the ladders on rail cars to move from rail car to rail car if the three‑contact‑point technique described above is followed by employees, that is, holding one handle with both feet on the floor of the bridge plate and grabbing the handle of the other side before letting go of the first handle.
[96] S. Vachon testified that to ensure that the employees always follow this procedure, CN gave them training and instruction. He added that all employees had received this training and instruction on January 31, 2011.
[97] S. Vachon stated that each supervisor is responsible for reminding employees, prior to each work shift, to follow all safety rules established by CN to ensure their protection, and for ensuring that all employees follow those rules when performing their tasks.
[98] S. Vachon testified that there are means in place, electronically and with forms, to monitor employee compliance with these rules. He provided documents dated January 27, 2011, entitled “[translation] Method for climbing into a rail car and crossing from rail car to rail car at all levels”, bearing the signature of supervisors and employees confirming that they had read these documents and understood the three‑contact‑point safety procedure established for crossing the bridge plates, regardless of their height.
[99] M. Tucci stated that to avoid snow or ice accumulating on the bridge plates when in use, CN stores them on racks with the anti‑skid side on which employees walk facing downward.
[100] M. Tucci testified that it is impossible for the bridge plates to be attached to the end of the levels in the rail cars because the bridge plates would get jammed up when lowered.
[101] S. Vachon stated that, after taking into account the preceding information, he concluded that the probability of an employee falling when using the bridge plates to cross from rail car to rail car is reduced to a low level when using the three‑contact‑point technique.
[102] On the basis of this evidence, Mr. Huart argues that HSO Testulat erred in concluding that a danger existed when employees use the bridge plates to cross from rail car to rail car.
[103] For all of these reasons, he asks that the direction issued to CN on January 31, 2011, and those issued the same day to CN’s 52 employees working at the site, be rescinded.
[104] As for the potential risk of an employee falling when installing the bridge plates, Mr. Huart produced a work procedure that he indicated in his written submissions, had been added by CN, in consultation with the local workplace health and safety committee, to section 6 of the document entitled “[translation] Safety policies, procedures and rules”, cited earlier, since the video had been taken and since the hearing into this matter.
[105] That procedure, entitled “[translation] Procedure for the installation of bridge plates” reads as follows:
[Translation]
Bi‑level cars (3 people required):
1. The first person climbs to the second level using the ladder while constantly maintaining three contact points. When at the second level, he enters the rail car and gets ready to receive the bridge plate from the person at the first level.
2. The second person climbs to the first level using the ladder while constantly maintaining three contact points. When at the first level, he enters the rail car and gets ready to receive the bridge plate from the person on the ground.
3. The third person, located on the ground, takes a bridge plate and passes it to the person at the first level.
4. That person lifts the bridge plate and rests the end without locking devices on the second level of the opposite rail car. He then passes the end with the locking devices to the person at the second level.
5. While maintaining three contact points, the person at the second level guides the person at the first level so that the latter positions the bridge plate’s fixed latch assembly in the catch.
6. The person at the first level then positions the movable latch assembly in the other catch and closes it to secure the bridge plate in place.
7. The process is the same for positioning the other bridge plate.
Tri‑level cars (3 people required):
1. The first person climbs to the third level using the ladder while constantly maintaining three contact points. When at the third level, he enters the rail car and gets ready to receive the bridge plate from the person at the second level.
2. The second person climbs to the second level using the ladder while constantly maintaining three contact points. When at the second level, he enters the rail car and gets ready to receive the bridge plates from the person on the ground.
3. The third person, located on the ground, takes a bridge plate and passes it to the person at the second level.
4. That person lifts the bridge plate and rests the end without the locking devices on the third level of the opposite rail car. He then passes the end with the locking devices to the person at the third level.
5. The person at the third level positions the bridge plate’s fixed latch assembly in the catch, while maintaining 3 contact points.
6. The person at the second level then positions the removable latch assembly in the other catch and closes it to secure the bridge plate.
7. The process is the same for positioning the other bridge plate and for placing the bridge plates at the second level.
[106] Mr. Huart argues that the procedure described above ensures the safety of employees as stipulated in section 12.10 of the COHSR, provided that that regulatory provision applies in this instance, which is disputed by Mr. Huard.
Analysis
[107] The question in this matter is to determine whether the danger directions issued on January 31, 2011 by HSO Testulat are well-founded.
[108] To determine whether these directions are well-founded, I must decide if a danger existed on January 31, 2011 for the employees concerned.
[109] The term “danger” is defined at subsection 122(1) of the Code as follows:
“danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;
[Emphasis added]
[110] In terms of the criteria used to establish the presence of an existing or potential danger within the meaning of subsection 122(1) of the Code, Justice Gauthier of the Federal Court stated the following at paragraph 36 of the decision she rendered in Verville v. Canada (Correctional Services)
[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.
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[36] Sur ce point, je ne crois pas non plus qu'il soit nécessaire d'établir précisément le moment auquel la situation ou la tâche éventuelle se produira ou aura lieu. Selon moi, les motifs exposés par la juge Tremblay-Lamer dans l'affaire Martin, susmentionnée, en particulier le paragraphe 57 de ses motifs, n'exigent pas la preuve d'un délai précis à l'intérieur duquel la situation, la tâche ou le risque se produira. Si l'on considère son jugement tout entier, elle semble plutôt reconnaître que la définition exige seulement que l'on constate dans quelles circonstances la situation, la tâche ou le risque est susceptible de causer des blessures, et qu'il soit établi que telles circonstances se produiront dans l'avenir, non comme simple possibilité, mais comme possibilité raisonnable.
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[Emphasis added]
[111] The danger identified by HSO Testulat in his directions is a potential risk of an employee falling at a height of more than 2.4 metres from the ground when crossing bridge plates.
[112] To conclude that there is a danger within the meaning of Justice Gauthier’s decision cited above and the definition of this term found in the Code, it is not sufficient, as I believe HSO Testulat did in his directions, to identify a potential risk associated with the performance of the activity in question, in this instance, a risk of falling. It is also necessary to identify the circumstances in which that risk is likely to cause injury to an employee and then determine if those circumstances can occur not as a mere possibility but as a reasonable one.
[113] To determine if a danger existed on January 31, 2011 in regards to an employee’s potential risk of falling when performing their work activities, I must answer the following two questions:
(1) What are the circumstances in which this risk is likely to cause injury to an employee?
(2) Could these circumstances have occurred on January 31, 2011, not as a mere possibility but as a reasonable one?
(1) The circumstances in which the potential risk of falling is likely to cause injury to an employee
[114] To help me identify those circumstances, I will refer not only to the evidence adduced with respect to a potential risk of falling when performing the employees’ activities but also to the regulatory provisions prescribed by the Code dealing with such a risk.
[115] Paragraph 12.10(1)(a) and subsection 12.10(1.1) of the COHSR, Part XII, related to the Code read as follows:
12.10 (1) Subject to subsection (1.1), every employer shall provide a fall‑protection system to any person, other than an employee who is installing or removing a fall‑protection system in accordance with the instructions referred to in subsection (5), who works
(a) from an unguarded structure or on a vehicle, at a
height of more than 2.4 m above the nearest permanent
safe level or above any moving parts of machinery
or any other surface or thing that could cause injury
to a person on contact;
[…]
(c) from a ladder at a height of more than 2.4 m
above the nearest permanent safe level where, because
of the nature of the work, that person is unable to use
at least one hand to hold onto the ladder.
(1.1) Where an employee is required to work on a vehicle
on which it is not reasonably practicable to provide
a fall‑protection system, the employer shall:
(a) in consultation with the policy committee or, if
there is no policy committee, the work place committee
or the health and safety representative,
(i) perform a job safety analysis to eliminate or minimize the need for the employee to climb onto the vehicle or its load, and
(ii) provide every employee who is likely to climb onto the vehicle or its load with training and instruction on the safe method of climbing onto and working on the vehicle or its load;
(b) make a report in writing to the regional health and safety officer setting out the reasons why it is not reasonably practicable to provide a fall‑protection system and include the job safety analysis and a description of the training and instruction referred to in paragraph (a); and
[…]
(1.2) The job safety analysis, training and instruction referred to in paragraph (1.1)(a) shall be reviewed every two years in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative.
[Emphasis added]
[116] Mr. Huart argues that section 12.10 does not apply to the work activities in this matter because, in his view, they do not occur “on vehicles”.
[117] The task of the employees concerned is the unloading of automobiles from the multi‑level railcars used to transport them.
[118] The evidence adduced further reveals that a locotractor, to which the multi‑level railcars are attached, must be used to unload them.
[119] According to the Petit Robert illustré, 1991 edition, the french term “véhicule” (vehicle) is defined as “[translation] any means of transportation” or any “[translation] motorized vehicle” or “[translation] something used to transport”.
[120] On the basis of that definition and the evidence, I conclude that the multi‑level automotive railcars in this matter are an integral part of a vehicle.
[121] Furthermore, reading the case law adduced by Mr. Huart, it seems to me that the amendments made to section 12.10 of the COHSR were made with the intent of covering any work activity performed by an employee on a vehicle that presents a risk of falling.
[122] Thus, to interpret the words “on a vehicle” found in this section as not applying to the activities performed by the employees in question – notably when they cross on the bridge plates installed between the rail cars or when they work on the edge of the levels in the rail cars to install those bridge plates – would not, in my view, achieve the intent sought by the amendments made to this regulatory provision, that is, to prevent injury to an employee working on a vehicle carrying a potential risk of falling.
[123] Moreover, no one is contesting in this matter the fact that the employees are exposed to a risk of falling when crossing the bridge plates or when installing them.
[124] For all these reasons, and given the evidence adduced, I am of the opinion that section 12.10 of the COHSR applies when employees are performing these manoeuvres.
[125] The evidence adduced also reveals that when employees cross the bridge plates installed between the rail cars, they are more than 2.4 metres above the ground at the highest levels in the rail cars and, in the case of the lower levels, are above steel parts that could cause injury on contact when falling.
[126] The evidence adduced further reveals that when employees install the bridge plates, they are still working at more than 2.4 metres on the edge of the highest levels and above steel parts that could cause injury on contact when falling in the case of employees positioned on the edge of the lower levels.
[127] In light of this evidence and referring to the regulatory provisions found at paragraph 12.10(1)(a) of the COHSR, cited earlier, it is my understanding that the following circumstances are those in which the potential risk of falling associated with the activity in question is likely to cause injury to an employee:
(1) walking on the bridge plates installed between rail cars without a safe means of ensuring their retention at more than 2.4 metres above ground or above steel parts that could cause injury on contact when falling;
(2) working on the edge of the levels in the rail cars when installing the bridge plates without a safe means of ensuring their retention at more than 2.4 metres above ground or above metal parts that could cause injury on contact when falling.
(2) Could these circumstances have occurred on January 31, 2011, not as a mere possibility but as a reasonable one?
[128] According to the report presented by A. Chantelois, a specialist in the work at heights field, there appears to be currently only one fall‑protection device that could be provided to employees when performing their activities which is able to prevent, with the appropriate coverings, exposure of metal parts to the sides of vehicles, thus meeting the constraints of their activity. That device is a body harness with a lanyard equipped with a shock absorber.
[129] However, based on what A. Chantelois indicated in her report and on M. Tucci’s testimony, not only are there not currently any references to determine if the handles in place on the rail cars are strong enough to be used as anchor points, in accordance with existing regulations, but it also does not seem reasonably practicable to carry out that verification on all of the rail cars arriving at the workplace.
[130] Moreover, as A. Chantelois also indicated in her report, the clearance available under the work surface of an employee wearing a body harness with a lanyard and shock absorber must be greater than 2.4 metres (8 feet) from the ground or any other thing on which the employee could be injured when falling in order to enable the lanyard to stop the fall before the employee touches the ground or the thing that could cause injury on contact.
[131] The evidence adduced reveals that the second levels of tri‑level cars are 7.8 feet above the ground and the first levels of all rail cars are 3.2 feet or 3.5 feet above the ground. Given this evidence, it is my understanding that the clearance available under the bridge plates installed at these levels is not enough to stop the fall of an employee wearing a body harness with a lanyard and shock absorber before the employee hit the ground.
[132] The evidence adduced further reveals that the steel parts used to couple the rail cars together are about 3.2 feet above the ground on bi‑level cars and the bridge plates installed between the highest levels of these rail cars are about 10.6 feet above the ground. On the basis of this evidence, it is my understanding that the free space under these bridge plates and above these parts would be less than 8 feet and, consequently, inadequate to stop the fall of an employee wearing a harness with a lanyard and shock absorber before he hit the steel parts below.
[133] As for the bridge plates installed between the highest levels of tri‑level cars, the evidence shows that these bridge plates are about 13.1 feet above the ground while the steel parts used to couple these rail cars are about 3.5 feet above the ground. Based on this evidence, it is my understanding that the free space under the surface of these bridge plates before reaching these parts is about 9.6 feet, which is greater than 8 feet.
[134] The evidence shows, however, that the distance between two rail cars is a maximum of 49 inches or 4.1 feet.
[135] In light of that evidence, it is my understanding that if an employee falls from a bridge plate installed between the highest levels of tri‑level cars, part of his body, including his head, could hit the steel floor of the levels below before the lanyard on his harness stopped his fall.
[136] I must also point out that the evidence shows that there is not one but two bridge plates installed parallel to each other at each level between the rail cars when employees are using them to cross from rail car to rail car.
[137] On the basis of this evidence, it is my understanding that if an employee falls from a bridge plate while crossing it, regardless of its height, part of his body, including his head, could hit the steel floor of the bridge plate located immediately beside him without the lanyard of a body harness being able to prevent it.
[138] In light of the above, it is my understanding that it does not seem reasonably practicable at present to provide a fall‑protection system to adequately protect employees using the bridge plates to cross from one rail car to another.
[139] The evidence adduced revealed, however, that the employer had in place on January 31, 2011 a work procedure requiring employees to always keep three contact points when crossing the bridge plates, regardless of the height of the bridge plates.
[140] The evidence adduced also revealed that, on January 31, 2011, all employees had received training and instruction on that procedure.
[141] The evidence adduced also shows that monitoring mechanisms were in place, on January 31, 2011, to ensure that that procedure was followed at all times by employees.
[142] Moreover, according to the testimony of P. Poncin, an expert in kinesiology, it appears that it is less risky for an employee, both in terms of the potential risk of falling and other possible potential risks of injury, to use the bridge plates and the three‑contact‑point technique described earlier than to use the rail car ladders to move from rail car to rail car.
[143] In light of this evidence and after examining the videos adduced at the hearing showing that the three‑contact‑point procedure can be used by employees on all bridge plates installed between the rail cars, I conclude that the possibility that the first circumstance described above could have occurred on January 31, 2011 had been minimized and that therefore did not constitute a reasonable possibility, but a mere one.
[144] Consequently, it is my opinion that there was not a danger to employees walking across the bridge plates in question by following the three‑contact‑point technique to cross from one rail car to another on January 31, 2011.
[145] I must now determine if the second circumstance that I identified earlier represented a reasonable possibility or a mere one on January 31, 2011.
[146] Based on the evidence described above, it is my understanding that the space available under the work surface of an employee installing a bridge plate and wearing a body harness with a lanyard and shock absorber would not be enough to stop his fall before he hit the ground, or steel parts used to couple the rail cars together, or even the edge of the floors at lower levels.
[147] Furthermore, according to M. Tucci’s testimony, if removable bridge plates were attached at each end of the levels in the rail cars, they could not be put in place because they would jam against each other when lowered.
[148] In light of the above, I conclude that it is not presently reasonably practicable to eliminate the need for employees to manually install bridge plates or to provide them with a fall‑protection system that adequately protects them during that manoeuvre.
[149] According to the documents adduced by Mr. Huart, a safety procedure was established by CN with the participation of the local workplace health and safety committee with the objective of minimizing an employee’s risk of falling when installing bridge plates at a height of more than 2.4 metres above the ground. That procedure requires employees to always remain in a crouched position, holding onto a rail car handle with one hand and with two feet on the ground, when at a height of more than 2.4 metres above the ground when installing bridge plates.
[150] Moreover, according to Mr. Huart, that procedure was developed after the video was taken and after the hearing into this matter.
[151] I also re‑examined the video adduced by M. Tucci and L. Renaud. On that video, I was able to observe employees at the second and third levels of the tri‑level cars installing bridge plates at the highest level as follows. The employee at the second level remains in a crouched position with both feet on the ground until he takes, with both hands, the end of the bridge plate with the locking devices that is passed to him by the employee on the ground. He then stands up to lift the bridge plate and rest the end without the locking devices on the floor of the third level of the rail car opposite him. He then raises both his arms to pass the end of the bridge plate with the locking devices to the employee just above him at the third level. After the employee at the third level has placed the fixed latch assembly in the catch, the employee at the second level uses one hand to slide the movable latch assembly into the other catch and close it to secure the bridge plate. The employee performs this manoeuvre while keeping the other hand on the handle of the rail car or on the edge of the floor of the third level. On this basis, it is my understanding that the employee positioned at the second level cannot hold onto either a rail car handle or the edge of the floor of the level immediately above him with one hand while he is lifting and passing the bridge plate to the level above, but that he can do so before these manoeuvres and when he is securing the bridge plate.
[152] Since it appears from the evidence adduced that it is not reasonably practicable at this time to provide a fall‑protection system to adequately protect employees even when they are at the highest levels in the rail cars, it seems to me that the procedure developed by CN for installation of the bridge plates, in consultation with their local workplace health and safety committee, makes it possible to minimize the potential fall risk to an employee at a height of more than 2.4 metres when performing this manoeuvre. I would add that the procedure observed on the video of employees positioned at the lower levels holding either the rail car handle or the edge of the floor immediately above them with their free hand and with two feet on the ground appears to also minimize the potential risk of falling to an employee working at these levels and above the steel parts just below on which they could be injured when falling.
[153] In light of the above, I conclude that the possibility that the second circumstance, described earlier, would occur is minimized and therefore does not constitute a reasonable possibility but rather a mere one.
[154] It is therefore my opinion that there is not presently a danger, within the meaning of subsection 122(1) of the Code, for employees installing bridge plates.
[155] Since I have determined that there was no danger, on January 31, 2011, to employees using the bridge plates when following the three‑contact‑point procedure to cross from one rail car to another, I am therefore of the opinion that the danger directions issued that day by HSO Testulat to CN and to its 52 employees working at the site were not justified.
Decision
[156] For these reasons, I rescind the directions issued by HSO Testulat on January 31, 2011 to CN and to its 52 employees working on the automobile ramp in the Taschereau shunting yard in Montréal (Quebec).
Katia Néron
Appeals Officer
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