2011 OHSTC 29

Citation: Caron Transportation Systems Partnership, 2011 OHSTC 29

Date: 2011-12-02
Case No.: 2011-59
Rendered at: Ottawa

Between:

Caron Transportation Systems Partnership, Applicant

Matter: An application for a stay of a direction

Decision: The stay of item 4 of the direction is granted

Decision rendered by: Mr. Douglas Malanka, Appeals Officer

Language of decision: English

For the Applicant: Ms. Lilie MacInnis, Safety and Compliance Coordinator, Caron Transportation Systems Partnership

REASONS

[1]   On November 25, 2011, Ms. Lilie MacInnis, Safety and Compliance Manager of Caron Transportation Systems Partnership (“Caron Transportation”) applied in writing for a stay of item 4 of the direction that Health and Safety Officer (HSO) Dawn MacLeod issued to the Company on November 9, 2011.

[2]   In addition to her written application for a stay Ms. MacInnis and Mr. Bill Pattison, Vice President of Operations, Caron Transportation, participated in a hearing that was conducted by telephone on November 30, 2011. A second hearing was held by telephone on December 1, 2011. Ms. MacInnis also forwarded relevant additional documentation to the Tribunal following both telephone hearings. 

[3]   There was no respondent in the matter.

[4]   The application for stay of the direction is made pursuant to subsection 146(2) of the Canada Labour Code (the Code). That subsection reads as follows:

146(2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.

Background

[5]   The direction issued by HSO MacLeod to Caron Transportation pursuant to subsection 145(1) of the Code refers to four contraventions. The fourth contravention reads as follows:

Contravention No: 4

Paragraph 125(1)(q) of the Canada Labour Code, Part II and subsection 14.24(b) of the Canada Occupational Health and Safety Regulations:

Employees employed as wash bay technicians, are required to move various Tandem, Tridem and Super B vehicles from the yard to the wash bays for cleaning.  The employer does not require these employees to possess a current and valid operator’s licence (Class 1, Class 3, etc, for specific axle configuration) which is not in accordance with provincial regulations and operator requirements identified by the manufacturer

Therefore you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II to terminate the contraventions no later than November 30^th, 2011.

Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time specified by the health and safety officer, to take steps to ensure that the contravention does not continue or reoccur.

Issued at Edmonton, this 9^th day of November, 2011.

[6]   The other three contraventions referred to in the direction pertain to information provided to contractors working at a Caron Transportation site, and to movement of vehicles by Caron Transportation employees in circumstances where, unbeknownst to them, contractors were working under the vehicle.  These three findings are not under appeal.

Analysis

[7]   The authority for an appeals officer to grant a stay is derived from the above aforementioned subsection 146(2) and the exercise of this discretion must be consistent with the purpose clause of the Code found in section 122.1 and any other applicable provisions.

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

[8]   In deciding this stay application, I applied the three part test adopted by the Tribunal. This test requires that:

- The applicant must satisfy the Appeals Officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim.

- The applicant must demonstrate that significant harm would be suffered if the direction is not stayed.

- The applicant must demonstrate that measures will be put in place to protect the health and safety of employees or any person granted access to the workplace should the stay be granted.

Is the question to be tried serious as opposed to frivolous or vexatious?

[9]   Ms MacInnis stated that Caron Transportation is of the view that the Alberta Traffic Safety Act, Part 3, Division 1, Operator’s licences, item 51 applies to motor vehicle operators on the highways and does not apply to their employees who operate Tandem, Tridem and Super B vehicles exclusively on Caron Transportation private properties and not on public highways. Therefore, they conclude that there is no need for these specific operators to possess a current and valid operator’s licence.

[10]           Ms MacInnis added that trucking associations in Alberta and Ontario have confirmed that this is standard practice that trucking companies follow with their yard personnel. She held that the issue in their appeal of the direction is neither frivolous nor vexatious.

[11]           Taking all of this into consideration, I am of the view that this matter raises a serious question to be tried.

Would the Applicant suffer significant harm if the direction is not stayed?

[12]           Ms. MacInnis stated that compliance with item 4 of the direction before the appeal is heard on the merits could be a significant financial burden on Caron Transportation. She held that, when the Company considers the cost of employee attendance at a Class One driver training school and cost of wages paid to employees while they are on course, the total cost could amount to $162,400 dollars.

[13]           Ms. MacInnis added that Caron Transportation would suffer significant lost hours of productivity and the Company has a limited number of employees in some of their locations. Ms. McInnis held that Caron Transportation will suffer significant harm if a stay of the direction is not granted.

[14]           Given the factors raised by Ms. McInnis, I am satisfied that this criterion is met.

What measures will be put in place to protect the health and safety of employees or any persons granted access to the work place should the stay be granted?

[15]           Ms. MacInnis testified that after the direction was issued, Caron Transportation took the following action:

  They communicated with contract companies granted access to properties owned by Caron Transportation and instructed that they must comply with their safety policies.  These policies require a contractor to place a notice tag on the glad hand of the unit and to place a cone in front of the unit when they are working on a unit;

  Caron Transportation supervisors are monitoring the activities of contractors and will ensure they are following their safety policies.  If they are not complying with these safety policies, they will not be permitted on Caron Transportation properties;

  Caron Transportation now ensures that vendor contractors (e.g., tire companies) sign in so that supervisors know they are on the property;

  Caron Transportation has implemented a training plan that includes a new on the job training form that documents employee training with a supervisor who is qualified with a Class I operator licence;

  The qualified supervisor verifies through on the job training that employees are competent on basic non-driving procedures such as hooking up and unhooking a truck to a trailer and conducting pretest and post tests when they are finished;

  Once a supervisor declares an employee competent on basic non-driving procedures, the employee attends a Yard Vehicle Operation training class which consists of class training, driving instruction by a supervisor with a Class 1 operators licence, and a road test;

  Class instruction addresses:

         - Pre and post vehicle inspection;

         - Characteristics of a Class 1 vehicle;

         - Defect forms;

         - Closing and opening the hoods;

         - Parts of a truck.

  Driving instruction includes:

      - Vehicle movement;

      - What to look for;

      - Off track height and width factors;

      - Dark driving environment;

      - Parking vehicles;

      - Honking horns;

- Use of air brakes connected with basic off highway     movement of the vehicle.

  Caron Transportation then administers a written test to assess employee understanding and a driver test where the employee must safely move the vehicle forward and backward according to a set course.

  Only employees who have successfully completed the training are permitted to operate vehicles on Caron Transportation property.

[16]           Ms. MacInnis confirmed that the training plan is now in place to ensure that the health and safety of employees and any person granted access to the workplace is protected.

[17]           Based on the submission, I am satisfied that the training plan established, and in place, by Caron Transportation ensures that the health and safety of employees or any person granted access to the workplace is protected should the stay be granted.

Decision

[18]           Taking into consideration the above, Caron Transportation’s application for a stay of item 4 of the direction issued by HSO MacLeod on November 9, 2011 is granted until the case is heard on its merit and a decision is rendered by an appeals officer.

Douglas Malanka
Appeals Officer