2014 OHSTC 21 

Date: 2014-10-20
Case No.: 2014-35

Between:

Canada Revenue Agency, Applicant 

and

Public Service Alliance of Canada, Respondent

Indexed as: Canada Revenue Agency v. Public Service Alliance of Canada

Matter: Application for a partial stay of a direction issued by a health and safety officer

Decision: The application for a partial stay of a direction is granted

Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision: English

For the Applicant: Mr. Martin Desmeules, Counsel, Department of Justice Canada, Labour and Employment Law Group

For the Respondent: Mr. Jean-Rodrigue Yoboua, Representation Officer, Legal Services, Public Service Alliance of Canada

Citation: 2014 OHSTC 21

REASONS

[1] The following reasons concern an application for a partial stay of a direction issued to the applicant, Canada Revenue Agency (CRA), on June 10, 2014, by Ms. Michelle Sterling, Health and Safety Officer (HSO). That direction has also been appealed by the applicant.

Background

[2] The applicant is an occupant of the Crown-owned Paul Martin Sr. Building which is at the center of the present case. The building, located in Windsor, Ontario, is recognized by the Federal Heritage Building Review Office. It is made up of a main structure built in 1932 that comprises six stories plus a basement with an entrance on Ouellette Avenue and an exit on Pitt Street. That structure has a stone façade. In 1959, a four story building was attached to the original structure. This latest structure does not have a stone façade.

[3] This matter concerns the use of the two 1932 structure entrances/exits mentioned above. On June 2, 2014, HSO Sterling conducted an investigation after a refusal to work was registered by an employee of the applicant CRA. Generally speaking, the reason for the work refusal was the building’s state of disrepair, specifically the condition of the building envelope or façade and the hazard associated with falling mortar or stone to the sidewalk. At the time of the HSO investigation into this work refusal, the Paul Martin Sr. Building housed approximately 370 employees of which approximately 295 were employed by the applicant, thus making CRA the major tenant of said building.

[4] On or about June 10, 2014, HSO Sterling ordered that the Ouellette Avenue main entrance and the Pitt Street secondary entrance be closed, with notices of closure being posted stating as reason the “danger of falling stone”. On June 10, 2014, HSO Sterling also issued to the applicant the direction mentioned above, ordering the latter to immediately protect any person from the “hazard of stone falling to the sidewalk […] which constitutes a danger to employees using either of those entrances/exits”. It is important to note here that on June 19, 2014, HSO Sterling issued to Public Works and Government Services Canada (PWGSC), owner, custodian and operator of this building, an identical direction based on the exact same reasons, said direction having been appealed by PWGSC and partially stayed for a specific period of time by the undersigned on July 24, 2014. By the present application, CRA is seeking the same partial stay as was granted PWGSC. Furthermore, the appeals by CRA and PWGSC against those identical directions have been joined for the purpose of hearing and decision on the merits.

[5] Since 2011, the Read Jones Christoffersen (RJC) firm of consultant engineers has, on a monthly basis, monitored the evolving state of disrepair of the main building’s façade and its inspection reports clearly state that there has been a deterioration of the stone façade since 1999, that the building is in disrepair and that there is the possibility of stones and debris falling from the building even where “as-needed” repairs are completed based on the monthly inspections.

[6] On March 28, 2014, RJC reported that if the building remained in its current state, “there are inherent risks associated with falling mortar pieces and stones”, that the “stone façade is in poor condition and should be rehabilitated immediately”, and that “the deterioration is accelerating, which will most likely lead to more frequent and more severe stone failures with an increasing risk of one or more large pieces of stone falling from the building to the street level”.

[7] The entrances to the older portion of the building central to this case, specifically the Ouellette Avenue entrance (entrance and exit) and the Pitt Street entrance (usable solely as emergency exit) are affected by this situation. Scaffolding has been placed around the building, including over these two entrances/exits, as a safety precaution against the possibility of falling stone and debris. This scaffolding has been in place for approximately four years and a March 27, 2014, report from BSG Engineering Limited (BSG) indicates that it is in poor condition and in need of rehabilitation. The RJC inspection report of March 2014 indicated, among other things, that the building was in need of immediate repairs and that there was a 90-100% chance of an object 5kg or less falling from the building, a 10-40% chance that such occurrence would involve an object weighing 5-10kg, a 0-10% chance of a falling object weighing 10-15kg and a 0-10% chance that such a falling object would weigh 15kg or more.

[8] The directions issued by HSO Sterling to CRA and to PWGSC derived from the following conclusion arrived at by the HSO:

Based on the information contained in the RJC report it is clear that there is a hazard associated with stones falling from the older portion of the building down to the street level below. Although controls have been put in place (scaffolding), it is clear that it is not an effective risk mitigation control as the scaffolding itself is in disrepair and in need of immediate rehabilitation. Furthermore, the engineering report states that there is a potential of a stone weighing over 15kg falling from the building and the scaffolding would not effectively safeguard an employee from a stone over 5kg if it should fall.

[9] In this application, counsel for the applicant has put forth that CRA’s present stay application is essentially based on the same facts and legal arguments that led the undersigned to partially stay the application of the identical direction that had been issued to PWGSC by HSO Sterling. In that decision affecting PWGSC, it was determined that PWGSC, as owner, custodian and operator of the building, had put in place inside and outside of the said building the necessary measures to ensure the health and safety of personnel and the public while the stay would be in place. Inside the building, measures had been put in place to ensure that the two doors not be used. As such, the Ouellette entrance/exit is monitored by commissionaires and the Pitt side door, an emergency exit door, cannot be used to enter the building unless opened from the inside. Notices have been posted at both doors and the Ouellette door has been locked. Outside the building, the scaffolding had been completely refurbished to contain debris up to 10kg in weight, thus offering an impact absorbing capacity of 40kg where the biggest piece reported to have fallen measured approximately 100mm x 100mm x 30mm and would weigh no more than 0.8kg. On the basis of this, the undersigned reasoned that since the limited stay that was sought “would apply solely to the two exits of the building strictly for use in an emergency evacuation - thus seldom and possibly never during the duration of the stay - and that while the entire façade of the building may be in disrepair, the space/surface of the façade occupied by the two doors represents only a fraction of that surface”, the measures in place would suffice to ensure the protection of personnel and public evacuating the building in an emergency.

[10] In the present application, counsel for the applicant pointed to the fact that in order to satisfy the requirements of the National Fire Code (NFC), it had to either (a) have access to the Ouellette and Pitt Street entrances for the limited purpose of emergency building evacuation, or (b) relocate approximately 70 employees from the older section to the newer section of the building in order to reduce the demand for the remaining exits in an emergency situation. In this regard, counsel noted that on or about September 15, 2014, the applicant had proceeded to move 62 employees to a different building, leaving 233 employees in the building, and, on or about July 31, 2014, had forbidden its employees to access what it refers to as the “restricted part” of the Paul Martin Sr. Building, that being the area near the Ouellette and Pitt Street doors.

[11] Despite what precedes, the applicant argues that it still has employees at the Paul Martin Sr. Building and that even though it has forbidden access to the so-called “restricted area”, there remains the possibility that employees can, although unauthorized, enter the said area where there is no physical barrier in place to fully prevent access and entry into the area, thereby making the Ouellette and Pitt Street entrances the closest exits that CRA employees could use in case of an emergency. It is thus the submission of the applicant that if a partial stay is not granted, in case of an emergency a PWGSC employee would be allowed to use the two entrances to exit the building, but not a CRA employee. This may cause confusion, even panic, and create more risks for CRA employees who might have to head towards the danger (i.e. the reason for the emergency evacuation) to find another way out.

[12] While the respondent, Public Service Alliance of Canada (PSAC), was offered the opportunity to make submissions vis-à-vis this application, on October 15, 2014, it informed the undersigned that “PSAC does not object to the request for an interim stay but takes the position that the same conditions that were issued to Public Works Government Service […] should be issued to the Appellant in the present case.”

Decision

[13] The Canada Labour Code specifies at section 122.1 that its purpose is the prevention of accidents and injury to health, and in my opinion, this must apply to any situation, however remote may be the possibility of such situation occurring. This being said, I have considered all the elements mentioned above as well as those mentioned in my earlier decision on the application for stay by PWGSC relative to the same circumstances. In this instance, I find myself in agreement with both parties. On the one hand, given the single site and the commonality of circumstances, I am of the view that consistency of treatment is essential. Given this, I also share the view expressed by the respondent that given the similarity between the two cases, there should also be consistency in the conditions that may be imposed.

[14] Considering all of the above and the fact that the stay of the HSO Sterling direction sought by the applicant is limited to the use of the Ouellette Avenue and the Pitt Street doors of the Paul Martin Sr. Building solely for the purpose of emergency evacuations, the partial stay is granted upon the following conditions:

- the application of the direction issued to the applicant on June 10, 2014, is stayed to the extent that the Ouellette Ave. and Pitt St. doors to the Paul Martin Sr. Building may be used solely for the purpose of emergency evacuation of the occupants of the said building;

- the duration of this partial stay is aligned to the duration of the partial stay granted to PWGSC on July 24, 2014, and consequently will be for a period of six (6) months from that date. The partial stay shall peremptorily lapse at the end of that period unless the hearing into the merits of the applicant’s appeal of the direction has been scheduled and/or has begun;

- copy of the monthly or other inspection report prepared by Read Jones Christoffersen (RJC) Consulting Engineers for PWGSC through SNC-Lavalin Operations and Maintenance shall be forwarded to HSO Sterling for transmission to the undersigned and should further degradation of the building be noted, the partial stay may be terminated upon submissions by the parties in this regard.

I shall remain seized of this matter for the above purpose as well as for determining any further application in this regard or for hearing the noted appeal by the applicant on the merits.

Jean-Pierre Aubre

Appeals Officer