2013 OHSTC 35
Citation: Canadian Pacific Railway Company v. Unifor Local 101-R, 2013 OHSTC 35
Case No.: 2013-69
Rendered at: Ottawa
Canadian Pacific Railway Company, Applicant
Unifor Local 101-R, Respondent
Matter: Application for a stay of a direction issued by a health and safety officer
Decision: The application is dismissed and the stay denied
Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer
Language of decision: English
For the Applicant: Mr. Nizam Hasham, Legal Counsel, Litigation and Labour, Canadian Pacific Railway Company
For the Respondent: Mr. Marc Ross, National Health and Safety Coordinator, Unifor Local 101-R
 On November 13, 2013, Canadian Pacific Railway Company (CP Rail) applied for a stay order relative to a direction that had been issued pursuant to paragraph 145(1)(a) of the Canada Labour Code (the Code) by Health and Safety Officer (HSO) Kelly Parkin on November 7, 2013. At the same time, the Applicant indicated that it would “be appealing this direction in due course”. On November 18, 2013, on the occasion of a telephone conference convened by the undersigned for the purpose of receiving submissions from both parties regarding the stay application, the Applicant provided a notice of appeal of the said direction through an email formally setting out its submissions in support of its application to have the direction stayed pending a decision of the appeal on the merits.
 On November 5, 2013, HSO Parkin attended at the work place operated by the Applicant at 7550 Ogden Dale Road, Calgary, Alberta, said work place being sometimes known as Canadian Pacific Railway-Headquarters Building, for the purpose of conducing an investigation into the use of motorized materials handling equipment by employees of the Applicant in operations for which said equipment may not have been specifically designed. That investigation had been initiated following previous instances of a similar nature where the use of motorized materials handling equipment (forklifts) by the Applicant to move railcars, an operation for which this equipment may not have been specifically designed, rated or tested, had been found to constitute a danger for the Applicant’s employees and followed up by directions to the present Applicant, pursuant to paragraph 145(2)(a), to take action to protect its employees from the identified danger. At the conclusion of the investigation, HSO Parkin found the Applicant to have contravened its general duty to ensure that the health and safety at work of its employees be protected, as required by section 124 of the Code, and issued a direction to the Applicant to terminate the contravention no later than November 15, 2013. The actual contravention is described as follows by the HSO in the direction:
Section 124 -- Canada Labour Code, Part II
In at least sixteen instances across Canada, (as identified in the attached document provided to the undersigned Health and Safety Officer on the 16 October 2013, by the employer), the employer has failed to protect the health and safety of employees, by requiring employees to use motorized materials handling equipment to push or pull railcars, despite the fact that the equipment manufacturers do not recommend that the equipment be used for this purpose.
While the above cited text clearly indicates that the investigation carried out by HSO Parkin and the direction that followed concerned “at least sixteen instances across Canada as identified (…) by the employer”, and directed that said contravention be terminated by November 15, 2013, the HSO went a step further and directed, pursuant to paragraph 145(1)(b) of the Code, that the Applicant also take steps by November 22, 2013, to ensure that the above mentioned contravention not continue or reoccur in all other work places under the control of the Applicant, thereby appearing to give the direction a Canada wide application.
 As stated above, on November 18, 2013, I held a teleconference to hear the stay application brought by CP Rail. In attendance were Mr. Nizam Hasham, counsel, as well as Mr. Robert Tully and Mr. Dwayne Dimaturco, for the Applicant, and Mr. Marc Ross and Mr. Brian Stevens for the Respondent.
 A very short time, actually just a few minutes, prior to the actual start of the telephone conference mentioned above, the undersigned received from counsel for the Applicant an eight page document purporting to provide the applicant’s explanations as to the background to the issue at hand as well as its submissions on meeting the applicable test to have the stay granted. That document was also provided to the Respondent who was granted some time to familiarize itself with its contents.
 The very brief background picture of the issue given in that document, one that is not disputed by the HSO report nor the Respondent, explains that in virtually all CP Rail sites, forklifts are used to perform various operational tasks, including pushing and pulling rail cars. It would appear that the Applicant has used track mobiles (specifically designed to the task of moving rail cars) and forklifts in its operations for the last several decades and until April 2013. In the 20 preceding months, the Applicant had taken a number of steps to improve its operations and in April 2013, the decision was made to eliminate the vast majority of track mobiles in operation and to consolidate the work in more versatile forklifts to improve operational flexibility, the net impact of which being to simply increase the use of forklifts to move railcars, a task which, according to counsel for the Applicant, forklifts were already performing for years prior to said operational decision.
 The Code clearly specifies at subsection 146(2) that the mere filing of an appeal of a direction issued by a health and safety officer does not, in and of itself, operate to stay the application and execution of the direction being appealed. The same provision however also clearly specifies that an appeals officer has the authority to order such a stay upon application by an employer, employee or trade union, and although the provision does not express this in so many words, consideration of every word of the provision makes it clear that the employer, employee or trade union capable of applying for such stay must be one concerned by the direction of which there is an appeal.
 An application for a stay is decided by an appeals officer upon consideration of a three part test or criteria that must be met in its entirety by the party making the application. This three part test or criteria consists of the following:
1) The Applicant must satisfy the Appeals Officer that there is a serious question to be tried as opposed to a frivolous or vexatious complaint;
2) The Applicant must demonstrate that he or she would suffer significant harm if the direction is not stayed by the Appeals Officer;
3) The Applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.
Is the question to be tried serious as opposed to frivolous or vexatious?
 On this particular point, with the filing of the Applicant’s submissions relative to the sought stay that clearly state that the Applicant is appealing the two part direction issued by HSO Parkin on November 7, 2013, one can say that an appeal has been properly filed that challenges the said direction. On that sole point, and upon examining the actual wording of the said direction, one can conclude that an appeals officer will have to hear and decide a serious issue. I am reinforced in this conclusion by the submissions filed by counsel for the Applicant on this first part of the applicable test. While I do not propose to reproduce fully the rather lengthy text of those submissions, counsel premised those by the following paragraph which suffices, in my opinion, in evidencing the seriousness of the issue. It reads as follows:
This is a serious issue for three main reasons. First, the Order has Canada-wide application to a minimum of 16 locations in CP’s network; by November 22, 2013, the order will apply to all workplaces under the control of CP (though the scope of workplace is undefined). Second, the Order appears to apply to a large number of CP assets, in that it directs CP to discontinue the use of all motorized materials handling equipment for certain purposes. Third, despite the vast geographic scope of the order and the large number of assets to which this Order applies, this Order was not based on any first hand observations by HSO Parkin.
 The Respondent briefly commented on this part of the test by stating that in its opinion, the direction by HSO Parkin is not national in scope and that it is appropriate in its application.
 On the basis of what precedes as well as the complete submissions by the parties, I have come to the conclusion that the question to be tried is a serious one. Consequently, the Applicant has satisfied the first element of the test.
Would the Applicant suffer significant harm if the direction is not stayed?
 The Applicant has dealt with this part of the test on the basis that it would suffer “irreparable” harm and would incur the most prejudice should the stay not be granted, tipping the balance of inconvenience in its favour. I have opted to treat both elements under the “significant harm” element of the test. The Applicant’s submissions are to the effect that motorized materials handling equipment has been used for decades to move rail cars and that should it be forced to stop using motorized materials handling equipment for this purpose, and be restricted to equipment more properly designed for such operations, such as locomotives and track mobiles, to name only those, it would be put at an economic disadvantage vis-à-vis its main competitors and other rail undertakings which, the Applicant claims, are not the object of similar orders and thus can continue to use forklifts to do the same rail car moves. There is, however, no evidence that other undertakings are not or have not been the object of similar orders. Furthermore, the direction concerns one rail entity and the appeal will need to be determined on the facts and circumstances that concern that entity.
 While the HSO report evidences that the direction is essentially directed at the use of one kind of motorized materials handling equipment, namely forklifts, such descriptive can extend to many different kinds of such equipment that can be used to move railcars that the Applicant claims it might no longer be allowed to use in other circumstances such as yard, offsite or mainline derailments, where the usually employed equipment to move rail cars under normal conditions, particularly locomotives, track mobiles and others may not be adapted to such extreme circumstances. Along the same line, the Applicant claims that because of the general language of the direction that uses the general descriptive “motorized materials handling equipment”, which encompasses more than just forklifts, it could be put in the situation where its use of other such handling equipment to do any number of tasks, which has been the case for decades, could prove detrimental to the Applicant.
 The decision by the Applicant to favour the use of forklifts to move rail cars instead of locomotives and track mobiles is apparently a recent one, the HSO report speaking of April 2013, and thus it appears that the equipment that could satisfy the direction in that it can attach to rail cars and rail car braking systems can thus be operated is still available, although possibly no longer in use. In point of fact, in its submissions for the Applicant, counsel stated as follows:
In addition to the above compliance steps (invoked relative to the third part of the test) for the use of equipment, CP had already begun to re-evaluate the suspension of its use of Track Mobiles in the summer of 2013. In at least four locations on its network, CP had already reintroduced track mobiles; those locations being Montreal, Moose Jaw, Aylth and Lethbridge. These decisions, to reintroduce some track mobiles into service, were made in mid-August 2013. The track mobiles were brought back into service in October 2013.
CP has also undertaken a number of process improvements which militate against the need to move railcars at all or which allow for this work to be completed differently. For example, work in Thunder Bay, Golden, Coquitlam and Winnipeg also utilize, among other things, locomotives. […]
 The Respondent very briefly commented that the only harm that one could even claim could be suffered by the Applicant is economic in nature and thus should not be retained, as the Code and the purpose of the direction is the protection of the employees’ health and safety. The Respondent added that the equipment necessary to effectuate the move of rail cars safely is already available at the Applicant’s but is not used. Furthermore, Mr. Ross argued that where track mobiles may not be available, yards have on hand locomotives that can be used to move rail cars, as had been the case prior to the Applicant’s recent decision. Finally, the Respondent also noted that some motorized materials handling equipment could be used to move rail cars where such equipment can run on rails, has proper attachment equipment and carries a compressor making it possible to operate rail car braking systems.
 Upon considering all of the above, and in view of the fact that in a great many if not all instances, the Applicant has already available the needed equipment to move rail cars without resorting to motorized materials handling equipment in the circumstances mentioned in the HSO investigation report, I have come to the conclusion that the harm that could be suffered, if indeed any harm would be suffered, is essentially economic. Had it been necessary for the Applicant to acquire equipment to satisfy the direction, albeit possibly only pending a hearing on the merits at appeal, my conclusion might have differed. However, that is obviously not the case and consequently such harm is insufficient to satisfy the second part of the applicable test.
 Considering my conclusion that the Applicant has not established that it would suffer significant harm if the application is dismissed and the stay denied, I do not need to consider the third part of the test.
 For the reasons set out above, the application for a stay of the direction issued by HSO Parkin on November 7, 2013, is dismissed and the stay is denied.
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