2013 OHSTC 27
Citation: City of Ottawa (OC Transpo) v. Norman MacDuff, 2013 OHSTC 27
Case No.: 2013-40
Rendered at: Ottawa
City of Ottawa (OC Transpo), Applicant
Norman MacDuff, Respondent
Matter: An application under subsection 146(2) of the Canada Labour Code for a stay of a direction issued by a health and safety officer
Decision: The stay of the direction is granted
Decision rendered by: Mr. Michael McDermott, Appeals Officer
Language of decision: English
For the Applicant: Mr. David Patacairk, Legal Counsel
For the Respondent: Himself
 This decision concerns an application brought under subsection 146(2) of the Canada Labour Code (the Code) for a stay of a direction issued by Health and Safety Officer (HSO) Marc Béland on July 4, 2013, pursuant to paragraph 145(2)(a) of the Code. The applicant is OC Transpo, the public transit service of the City of Ottawa, Ontario. The respondent is Mr. Norman MacDuff, a bus operator employed by the applicant.
 The subject direction was issued by the HSO following his investigation of a refusal to work exercised by the respondent. Mr. MacDuff was assaulted by a customer passenger while at work on March 26, 2013. He sustained injuries and was off work or on partial duties for some time thereafter. He invoked the work refusal on return to full duties on June 3, 2013. The HSO conducted his investigation on June 5 and issued the direction under appeal on July 4, 2013.
 Three separate directions were issued by the HSO, two to OC Transpo, the employer, and one to Mr. MacDuff, the employee concerned. While the employer has appealed all three directions, only one is the subject of this stay application. That direction was issued following the HSO’s finding of an activity constituting a danger to an employee while at work and reads as follows:
It is dangerous for Mr. Mac Duff, the employee who made the refusal to work, to perform his bus operator duties where he is exposed to members of the public, as a lack of systematic controls exist to prevent a work place violence-related injury to him similar to the one he suffered on March 26, 2013.
The employer was directed under paragraph 145(2)(a) to alter the activity constituting a danger no later than August 1, 2013. The stay application was filed on August 13, 2013.
 A telephone conference hearing on the application was held on Thursday, August 29, 2013. Mr. David Patacairk represented the employer, Mr. MacDuff represented himself. I asked HSO Béland to join the call and to give a brief factual summary of the situation he found when commencing his investigation. His summary capsulized in paragraph two above was not challenged by the parties. The criteria considered by appeals officers in the exercise of their discretion to grant a stay of execution of a direction were provided to the parties by e-mail from the Tribunal Registrar on August 22, 2013. The three criteria are as follows:
1) The applicant must satisfy the appeals officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim;
2) The applicant must demonstrate that it would suffer significant harm if the direction is not stayed; and
3) The applicant must demonstrate that in the event that a stay is granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.
 The applicant had provided a succinct written submission with jurisprudential references in support of its application that was made available to me and Mr. MacDuff prior to the telephone conference hearing. Counsel for the applicant spoke to the submission and elaborated on its contents during the hearing.
Is there a serious question to be tried?
 While acknowledging that the Code’s provisions regarding the presence of danger in the work place are well canvassed in judicial and quasi-judicial proceedings, Counsel for the applicant cites jurisprudence indicating that, when an appeal of a direction calls for interpretation of a section of the Code that has not previously received judicial interpretation, a stay merits consideration. (See, Canada Post Corporation and Canadian Union of Postal Workers Decision no. OHSTC-10-002(S)(R), paragraph 8). He submits that “the question of whether interacting with customers from the public is per se a “Danger” under the legislation” has not been extensively litigated and argues that a decision in this appeal “could have a wide ranging impact across several industries within Canada”.
 Under the same criterion the Counsel questions “whether a “Danger” can be found based solely on a past incident and in the absence of any finding that harm to an employee is likely to occur in the future”.
Would the applicant suffer significant harm if the direction is not stayed?
 Counsel gave an overview of the scope of Ottawa’s public transit operations noting that some 200,000 residents rely on the system on a regular work day and that approximately 101 million passenger journeys were provided in 2012. Referring to meetings with the HSO, Counsel addressed the question of harm to the transit system if the direction is not stayed in three respects: the cost of remedial measures discussed at the meetings; the loss of service and revenue in the event of an order to shut down the system that was alleged to have been mooted by the HSO; and, a claim that it is difficult to respond to a non-specific and vaguely worded direction.
 Remedial measures said to have been raised during the meetings with the HSO include video surveillance cameras in buses, barriers or shields between operators and customers and additional security staff on buses or at locations along the routes. A report prepared for the Transit Commission in June 2013 and attached to the applicant’s submission estimated a cost of $16.32 million to equip the entire OC Transpo bus fleet with video cameras. The applicant estimates that provision of barriers or shields would cost between two and four million dollars, depending presumably on the particular model used. Parenthetically, Counsel observed that occupational safety issues could result from installation of barriers or shields such as glare or inhibition of egress in the event of an emergency. There are currently 48 Special Constables at OC Transpo. It was submitted that increasing their number and improving their ratio to the 1700 bus operator complement would involve considerable straight hourly and overtime labour costs. Overall, Counsel argued that to require the applicant to take such steps and incur millions in costs when its appeal might ultimately be successful, would amount to significant harm.
 With respect to the possible closing down of the system, the applicant provided an additional document in the form of an audit report by the City of Ottawa Auditor General on the incremental costs of the transit work stoppage in 2008 and 2009. The stoppage resulted in an eight week shut down of transit operations. The audit found that the net financial loss to the City, taking account of loss of revenue and requirements to continue paying contractual obligations, balanced against operational savings, amounted to $5.9 million. Counsel argued that in addition public trust in the reliability of the system was compromised and continuing ridership numbers were adversely impacted.
 Apart from citing financial costs in support of its submission on significant harm, the applicant also claims that harm is caused to it by a lack of specific information provided in the direction as to the nature of the measures needed to be compliant with its terms and thus to avoid drastic sanctions. The claim is elaborated to some extent in an affidavit by Ms. Donna-Lynn Ahee, Safety Coordinator for Transit Services, which was made available to me on the day of the telephone conference hearing. Ms. Ahee states her belief that “the “Danger” Direction is, and remains, too vague to identify specifically what activity constitutes a “Danger”, and as such it is unclear from a reading of the Direction what action the City of Ottawa must undertake to be compliant with the terms of the Direction.” Counsel also submits that harm may be caused arising from the lack of specifics in a direction and a related inability to comply with its terms within the stipulated timeframe.
If a stay is granted, will measures be put in place to protect the health and safety of employees?
 Counsel emphasized that the applicant is only seeking a stay on one of the two directions issued to it and is working to respond to the second direction that found contraventions of Code provisions and regulatory requirements regarding measures to prevent and protect against violence in the work place. It appears that a violence prevention and protection plan specific to OC Transpo operations had not been developed. Rather the overall City of Ottawa plan had been applied to the transit service. I was informed that the applicant has agreed to and is instituting a separate OC Transpo plan. In addition, I was referred to a document titled “OC Transpo Assault Prevention Measures, 2013”. Counsel said that parts of the document had been in place for some time with other material added more recently.
 In support of the applicant’s claims that OC Transpo’s bus operators work in an essentially safe environment and that its violence prevention measures are effective, Counsel referred to Violence Against Transit Employee (VATE) statistics compiled by the employer for the years 2010, 2011 and 2012. The three level classification of the seriousness of assaults was explained. It was noted that the total of reported assaults was relatively modest with between 58 and 67 incidents occurring annually over the three year period and Counsel submitted that the vast majority of the assaults were at the lower Level 1 classification with none reported at the highest Level 3.
 With respect to Mr. MacDuff’s circumstances, the applicant referred to the direction that had been issued to him by HSO Béland, also on July 4, 2013, under subsection 145(2.1) of the Code. That direction enjoins Mr. MacDuff to discontinue the activity constituting a danger until the activity identified in the direction issued to the employer has been altered. Counsel confirmed that accommodative measures have been implemented and that Mr. MacDuff’s duties are not currently those of a bus operator.
 While he expressed opposition to the granting of a stay in this case, Mr. MacDuff did not specifically challenge the applicant’s contention that there is a serious issue to be addressed. His responses to the applicant’s submissions were essentially confined to the other two criteria. On the question of whether significant harm would be caused to the applicant, Mr. MacDuff argued that the financial costs for remedial measures identified by the applicant represent a relatively small proportion of the City’s total budget maintaining that such costs would not amount to significant harm.
 With respect to protective measures and existing violence prevention programs for OC Transpo operators, Mr. MacDuff argued that they are predominantly reactive rather than pro-active. He took issue with the validity of the VATE statistics on grounds that they only began to be collected in recent years. He maintained that the incident reporting form leaves room for differing assessments of the seriousness level depending on a supervisor’s subjective view of the circumstances of an assault. However, he did note that assaults on some 60 operators have been recorded each year since 2010 and added that at least 15 operators have been assaulted since he was assaulted in March this year.
 Mr. MacDuff alluded to protective shields and screens that he understands have been installed in buses operated by other transit authorities in North America and specifically mentioned that OC Transpo has provided for protective screens to shield its employees located in customer service kiosks.
 The granting of a stay of a direction pursuant to subsection 146(2) of the Code is an exceptional measure. The determining criteria applied by appeals officers are sequential and all three need to be assessed when an application to grant a stay is considered. With respect to the serious question criterion, I turn first to the questions posed by Counsel for the applicant as to whether or not a finding of danger can be made solely on a past incident and in the absence of any finding that harm to an employee is likely to occur in the future. There is substantial jurisprudence relevant to proceedings under the Code regarding these questions. Just how the jurisprudence may apply to the present case is a serious question that will need to be addressed in the appeal in the light of its facts and on its merits.
 I find the applicant to be on strong ground when contending that the issue of employees interacting with the public and its relevance to findings of danger within the meaning of the Code is replete with implications for OC Transpo’s modus operandi. Indeed, there are implications for other transit services and for industries where dealing with the public on a regular basis and significant scale is the norm. While the circumstances and underlying facts of the decision cited by Counsel differ from those in the case at hand, I am of the view that the applicant poses a valid concern and find that the question to be tried is serious and neither frivolous nor vexatious.
 For the second criterion, that of significant harm if a stay is not granted, I find that the applicant makes a convincing case with respect to the potential costs of compliance with the direction. Mr. MacDuff’s characterisation of these costs as modest in relation to the City’s overall budget might apply in strict percentage terms but I do not accept that it is a valid way to assess the apportionment of municipal expenditures. I agree with Counsel for the applicant that the costs of implementing the remedial measures discussed with the HSO would be considerable.
 That said, I am conscious of appeals officers having held previously that financial costs or mere inconveniences do not alone satisfy the significant harm criterion. Even so, the potential financial costs in the present case are substantial and not of the same order as a mere inconvenience. In my view, the prospect of the applicant incurring considerable costs on the basis of a finding that it is contesting and that as in all appeals may or may not be sustained, deserves some consideration.
 The applicant contends that the direction is vague and lacks specifics. As such it submits that it is unclear what measures need to be taken to be in compliance. This it is argued may cause harm because, if found to be non-compliant, the applicant may be subject to drastic sanctions without having had an opportunity to understand what steps were required to ensure compliance. Where this argument gains additional merit for me is when the short timeframe set for compliance with a far reaching direction is also considered. I am of the view that to expect the longstanding practices involved could be altered in any significant manner in the space of some four weeks is unrealistic and that endeavouring to do so would place great stress on the applicant and the transit system. In this respect, Counsel made reference to a previous Tribunal decision, in which disruption to long established practices was taken into account in the granting of a stay. Although the facts differ appreciably, I find the underlying argument in that case to be of relevance here. (Bell Canada, 2010 OHSTC 16).
 In sum, based on all the above, I find that the applicant has demonstrated that it would suffer significant harm if a stay is not granted.
 On the third criterion, the protection of employee health and safety, I start with Mr. MacDuff’s specific circumstances. Counsel for the applicant confirmed that he is not currently performing the duties of a bus operator and that alternative work has been assigned to him. In a literal sense, the third criterion has been met in his case and indeed the direction issued to him on July 4, 2013, to discontinue the activity found to constitute a danger, ensured that it would be.
 In a broader sense, that is measures in place to provide violence prevention and protection programs and training for OC Transpo’s bus operators, Counsel for the applicant indicated that the past practice of applying the City of Ottawa’s programs to transit employees is being changed and that an OC Transpo specific program is being implemented. “OC Transpo Assault Prevention Measures 2013”, the document provided by the applicant, outlines practices to be followed by bus operators when endeavouring to avoid conflicts with passengers and indicates steps that can be taken if danger is believed to be imminent. The document also indicates that buses are equipped with silent alarm systems that enable bus operators to call for assistance when faced with escalating situations. Additional information was provided to me about measures taken by OC Transpo’s Special Constables, in conjunction with the Ottawa Police Service, to gather preventive intelligence and to provide protective assistance in circumstances where assaults might be anticipated; for example, Special Constables follow particular late night services on routes where problems have previously been encountered.
 The points made by Mr. MacDuff on this criterion largely address his views on such matters as the validity of the employer’s statistical records and a continuing incidence of assaults on bus operators. He also questions whether the employer is compliant with requirements for job hazard analyses and hazard prevention programs. In my view these points relate more to the merits of the appeal and should more appropriately be expressed and considered in the context of a full hearing on those merits.
 The applicant presented me with an account of the employer’s existing policies designed to afford preventive measures aimed at the avoidance of customer perpetrated violence against bus operators and the provision of protective measures when such violence is anticipated or apprehended. In addition, the applicant has given assurances that the employer continues to take steps to enhance these measures, notably by endeavouring to ensure that they take account of circumstances specific to those employees engaged as bus operators at OC Transpo. I am satisfied that the third criterion has been met.
 For the reasons given above, the application for a stay of the direction in question issued by HSO Marc Béland on July 4, 2013, is granted until the final disposition of the appeal on its merits.
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