2016 OHSTC 16

Date: 2016-09-21

Case No.: 2016-10

Between: Richardson Pioneer Limited, Appellant

Indexed as: Richardson Pioneer Limited

Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an Official delegated by the Minister of Labour

Decision: The direction is rescinded

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

Language of decision: English

For the appellant: Mr. Sven T. Hombach, Fillmore Riley LLP

Citation: 2016 OHSTC 16


[1] This concerns an appeal brought under subsection 146(1) of the Canada Labour Code (Code) against a direction issued by an Official Delegated by the Minister of Labour, Ms. Courtney Wolfe (hereinafter the “Ministerial delegate” or “the delegate”), on March 15, 2016. That direction was issued at the conclusion of the latter’s inspection of the work place operated by the appellant Richardson Pioneer Limited in Weyburn, Saskatchewan, said work place being sometimes known as Richardson Pioneer-Weyburn. The direction was issued pursuant to paragraph 145(1)(a) of the Code and ordered the appellant to terminate the two contraventions identified therein no later than March 29, 2016. Upon filing its appeal, the appellant also sought to have the application of the said direction stayed pending a hearing on the merits. By decision letter issued on April 19, 2016, the undersigned granted a stay of the direction with formal reasons to follow. The reasons for my decision are set out in Richardson Pioneer Limited, 2016 OHSTC 8, and were issued on May 25, 2016.

[2] The contraventions identified in the direction specified violations to two employer obligations established by the Code, more specifically paragraphs 125(1)(b) and 125(1)(a), which in both cases require, to be whole, attachment to a regulatory provision, in both cases a prescribed standard. In the first case (125(1)(b)), which provides that the employer shall “install guards, guard-rails, barricades and fences in accordance with prescribed standards”, Ministerial delegate Wolfe invoked subsection 2.10(2) of the Canada Occupational Health and Safety Regulations (the Regulations), while in the second case (125(1)(a)), which obliges the employer to “ensure that all permanent and temporary buildings and structures meet the prescribed standards”, delegate Wolfe invoked subsection 2.9(2) of the Regulations. The direction raised a single situation as a basis for the contraventions noted therein, to wit that “there were no protective devices installed at the openings of the rest platforms on the fixed ladders of the Weyburn elevator facility”. During the course of the preparatory telephone conference held by the undersigned and to which she took part and also when testifying at the hearing, Ministerial delegate Wolfe clearly indicated that the “protective devices” she was referring to in the direction were what is commonly referred to as “swing gates”.

[3] Furthermore, the single prescribed standard on which delegate Wolfe founded both violations is the one incorporated by reference at subsection 2.9(1) of the Regulations, to wit ANSI Standard A14.3-1984 entitled American National Standard for Ladders-Fixed-Safety Requirements, with subsection 2.9(1) spelling out that a fixed ladder installed after the day of its coming into force had to be designed, constructed and installed in accordance with the said Standard, as would need to be the case for exterior fixed ladders constituting a secondary exit from the floor or roof of the installation for every grain-handling facility (subsection 2.10(1). Noteworthy however is the fact that where subsections 2.9(2) and 2.10(2) are concerned, said regulatory provisions being essential elements of the contraventions identified by delegate Wolfe in the direction under appeal, the obligation to ensure the design, construction and installation of those fixed ladders is in accordance with the said Standard is reduced to the level of reasonably practicable where the said ladders are installed “before the day of the coming into force” of section 2.9 of the Regulations.


[4] As can be seen from the front page, no party appeared in the capacity of respondent to challenge the appeal brought by Richardson Pioneer. Three witnesses appeared at the hearing, those being Ministerial delegate Wolfe, Mr. Jeff Kisiloski, who is the appellant’s Director of Environment, Health and Safety, and Mr. Doug Petrick, a professional engineer and senior vice-president, Design and Construction Services for the FWS group of companies, who was presented and recognized by the undersigned as expert witness in agri-construction with extensive experience in the design and construction of facilities such as the Weyburn elevator, inclusive of the design and construction of vertical escape ladders.

[5] The dates of the coming into force of sections 2.9 and 2.10 of the Regulations as well as that of the actual construction of the Weyburn facility, and thus of the installation of the fixed ladders central to the issue of the appeal, are of primary importance and need to be established at the outset. As such then, those two sections form part and parcel of a more comprehensive part of the Regulations that is properly identified as Part II under title Permanent Structures. The October 11, 2000, edition of the Canada Gazette, Part II, wherein are published Statutory Instruments for the year 2000, registered as SOR/2000-374, dated 28 September, 2000, under title Regulations Amending the Canada Occupational Safety and Health Regulations, states at its section 2 that “Part II of the Regulations is replaced by the following: Part II, Permanent Structures”, and thus sections 2.1 to 2.27 (inclusive of sections 2.9 and 2.10) came into force on that date. As far as the Weyburn installation of the appellant is concerned, the evidence submitted and/or corrected by the appellant both at the time of the hearing on the stay application as well as at the hearing on the merits, is to the effect that while the drawings for the installation were created in October 2001 and the actual “slip” was poured in April 2002, at which time the various ladders, including the external fixed ladders, were installed, the facility was commissioned for operations in October 2002. The appellant has thus presented the Weyburn grain elevator as having been constructed in 2002 and has consequently acknowledged that said construction had taken place after sections 2.9 and 2.10 of the Regulations had come into force.

[6] The Richardson Pioneer-Weyburn facility is a grain elevator. In this respect, the evidence from all witnesses as well as documentary evidence received from the appellant demonstrates that the direction was issued to the appellant at the conclusion of an inspection process conducted by a ministerial delegate whereby a number of other issues, including the installation of gates where the employer did not see those as being problematic or create a new hazard, were resolved through voluntary compliance, but where the issue at hand could not be resolved in the same manner and the appellant indicated to delegate Wolfe that it was of the view that no further action regarding the fixed ladder system on the outside of the elevator was required. The same collective evidence is to the effect that the Weyburn facility contains several offset ladder systems on the outside of the elevator, that those include offset ladder platforms and that the offset ladders are primarily used for emergency egress and are not used on a routine basis to ascend or descend from the rooftop to the ground level or from one floor of the grain elevator to another. To ascend or descend daily during routine operations, there is a man-lift on the inside of the grain elevator as well as an inside stairway spanning the lower and upper cleaner floors.

[7] When testifying, delegate Wolfe acknowledged that given the date of the commissioning of the Weyburn elevator (October 2002) relative to the coming into force of section 2.9 of the Regulations (September 28, 2000), her basing the contraventions specified in the direction under appeal on subsections 2.9 (2) and 2.10(2) would have been improper since those provisions of the Regulations would concern installations preceding the coming into force of those provisions, which was clearly not the case, and that the regulatory provisions she should but did not invoke to make the contraventions whole should have been subsections 2.9(1) and 2.10(1). She maintained however that she had proceeded in this manner based on the repeated information provided by the appellant that the elevator had been constructed in the late 90s, yet she provided no indication or information at the hearing of any attempt made at the time to confirm or infirm such information prior to proceeding with issuing the direction.

[8] When questioned by counsel for the appellant, delegate Wolfe did confirm that while the Regulations had been amended in September 2000, in fashioning her direction, she clearly was referring to the applicable ANSI Standard 1984, as referenced in subsection 2.9(1), even though that Standard had clearly been replaced at that time by ANSI Standard 1992 (November 1992) and that consequently, she recognized that section 6.3 of the 1984 ANSI Standard makes no reference to “swing gates” ( platforms shall be provided with railings and toeboards, in accordance with ANSI A12.1-1973.), that in essence she was making reference to section 3.2 of the said 1973 Standard incorporated by reference in the 1984 Standard (3.2: Every ladderway floor opening or platform shall be guarded by a guard railing with a toeboard on all exposed sides (except at entrance to opening), and with the passage through the railing provided so that a person cannot walk directly into the opening.), that while there may be no swing bars on some of the platforms of the exterior ladder system at Weyburn, the top platform (roof) entrance is protected by a swing gate and finally, when presented with pictures of the exterior offset ladder system (E-5), that those demonstrated that a person using the system would not need to walk directly into the opening of the ladder.

[9] In his testimony, Mr. Kisiloski explained that an offset ladder system such as the one in this case differs from a straight ladder system in that the ladder itself is interrupted at various intervals by platforms that provide a rest area during ascent or descent. Installation of swing gates on these platforms, as sought by the direction, would not be safe, firstly because the said platforms are too small to safely accommodate gates that could hinder egress to the next offset ladder segment and secondly, because inward-swinging gates could make it difficult for a person to escape as they would act as a barrier, this representing an additional and new safety hazard. The witness pointed out that on other platforms that have more space, such as the platforms on the catwalks or walkways leading to ordinary inside-to-outside doors at various levels of the elevator, Richardson had indeed installed swing gates as it considered those to incrementally add to safety, which would not be the case for swing gates on offset ladder platforms. As regards the ANSI A14.3-1984 Standard and the cross-referenced 1973 version of ANSI A12.1 Standard which stipulates that every platform must have a guard rail with a toeboard on all sides except the entrance to the opening and that the passage through the railing must be such that a person cannot walk directly into the opening, witness Kisiloski confirmed that it was not necessary to pass through the railing to get to the opening on the platforms, with the exception of the rooftop access passage to the ladder system where swing gate(s) had already been installed.

[10] Expert witness Petrick essentially confirmed Mr. Kisiloski’s concerns that the installation of swing gates on the Weyburn offset ladder platforms would be unsafe and expressed the opinion that such installation would deter from good engineering practice. In describing the difference between straight ladder platforms and offset ladder platforms, the expert noted that to ascend or descend a straight ladder, safety equipment, including a full harness, must be used. This is not the case where offset ladders are concerned. Rest platforms for straight ladder systems are located off to the side. In an emergency, it is thus not necessary to step on or traverse the rest platforms of a straight ladder. In contrast, rest platforms are an integral part of offset ladders that cannot be avoided. When ascending or descending an offset ladder, one has to step onto the platform and move sideways. It was presented as his professional opinion that offset ladder platforms, which generally measure 30x30 inches, are too small to safely accommodate a swing gate. In an emergency, especially when several people may be trying to climb down the ladder, people could get stuck behind the gate and the flow of the evacuation disrupted.

[11] As regards reference in the Regulations to ANSI A14.3-1984 and the incorporation by reference therein of ANSI A12.1-1973 (section 3.2), Mr. Petrick interpreted the words “passage through the railing” as referring solely to the top of the ladder, thus at the roof top where gates are already in place, since no passage through the railing is required on any of the offset ladder platforms themselves. The witness also drew attention to the fact that the 1984 ANSI Standard referenced in the Regulations was replaced in 1992, thereby making ANSI A14.3-1992 the most recent version of the Standard prior to the Weyburn facility being built. Just as the 1984 version incorporated by reference ANSI A12.1-1973, which spoke of “passage through the railing”, the 1992 version referred to ANSI A1264.1-1989 and spoke of the “entrance way”, which expert witness Petrick interpreted, as for the 1973 expression, to apply only to the entry to the ladder system, i.e. on top of the roof. He did not thus consider the Code/Regulations provisions to require a barrier on the individual offset ladder platforms themselves.

[12] He advised that technical codes and standards have to be interpreted in accordance with their intent, which is to increase safety and expressed the opinion that the installation of swing gates on offset ladder platforms would mean the opposite. He concluded his testimony by noting that the concept of swing gates was only introduced in ANSI A14.3 with the 2008 version, thus after the construction of the Weyburn installation, but that it only applied to straight ladder platforms, as evidenced through comparison of Figures 5 and 6 in the text of the said Standard where it is clearly depicted through Figure 6 showing an offset ladder platform that no swing gate is required, whereas Figure 5 showing a straight ladder platform evidences the presence of a swing gate.


[13] From an initial reading of the direction, as formulated by Ministerial delegate Wolfe, one can readily define the issue or issues to be determined by this appeal as whether the appellant is, or was at the time of delegate Wolfe’s inspection, in contravention of paragraphs 125(1)(b) and 125(1)(a) of the Code when it failed to have installed “protective devices at the openings of the rest platforms on the fixed ladders of the Weyburn elevator facility”, those protective devices being described by delegate Wolfe and acknowledged by the appellant as being swing gates. A further reading of the direction however leads one to expand somewhat on the said issue or issues by taking into account the Regulations provisions appended to the Code provisions in the direction, those being subsections 2.10(2) and 2.9(2), as well as the text of the incorporated by reference Standard, that being ANSI A14.3-1984, as acknowledged by delegate Wolfe at the hearing, and thus refine the formulation of the said issue(s) by examining whether, given the type of fixed ladders affixed to the exterior of the Weyburn installation, such protective devices as identified are required under the combined Code/Regulations obligations. There is however another issue that has become evident given the wording of both Regulations provisions invoked in the direction, those bringing to the fore the question of the date of construction of the Weyburn installation, and the effect on the substance or extent of the appellant’s compliance obligation that could range from a “reasonably practicable” to an unrestricted or strict obligation, all this as a result of delegate Wolfe’s acknowledgement that the direction as formulated is based on the wrong Regulations provisions since the Weyburn installation was constructed and/or became operational not before but after the coming into force of the applicable section 2.9 of the Regulations. Stated more succinctly, the issue concerns the validity of the direction as issued, where the determination of the said issue may make it unnecessary to consider the initial issue defined above.

Submissions of the parties

Appellant’s submissions

[14] Stated in a nutshell, the submissions of the appellant are that swing gates on the offset ladder platforms are neither a legal requirement nor in accordance with good engineering practice. On the question of good engineering practice, counsel for the appellant has essentially repeated and thus formulated his submissions on the testimony of both Mr. Kisiloski and Mr. Petrick. Consequently, it is not necessary to restate here what would be a repetition of what is stated above. As to the question of whether, under the Code and its Regulations, there exists a legal requirement for swing gates on the appellant’s Weyburn offset ladder platforms, counsel has fashioned his arguments in the alternative format of which ANSI Standard A14.3 would or could govern the situation, the 1984 version, its 1992 replacement or even its subsequent 2008 replacement, this last one occurring after construction of the Weyburn installation, giving in this regard uppermost importance to the central principle of statutory interpretation that the law is to be considered as always speaking, with every word thus being presumed to make sense and have a specific role to play in advancing the legislative purpose. In this regard, counsel argued that in referring in subsection 2.9(1) of the Regulations to ANSI Standard A14.3-1984 specifically, the regulator exhibited the clear intention that the Regulations receive an interpretation consistent with that version of the Standard, and that the words “as amended from time to time” in that subsection of the Regulations should be seen as meaning minor changes to the 1984 version as opposed to the replacement of the said version by the 1992 or 2008 versions which would require regulatory amendments. Counsel thus submitted that given the still unamended text of subsection 2.9(1) of the Regulations, it is still the 1984 ANSI Standard A14.3, with its own cross-referenced Standard ANSI A12.1-1973, that would find application in the present case.

[15] Counsel submitted that there are multiple reasons to reach that conclusion. The first is that the Regulator should be presumed to have chosen to reference the 1984 version of the ANSI Standard by referring to “A14.3-1984” as opposed to “A14.3” purposefully, since there had already been in existence for eight years a newer version of the Standard at the time of the September 28, 2000 regulatory amendment (ANSI A14.3-1992 adopted November 24, 1992). Had the Regulator wanted to incorporate into the Regulations versions of the Standard as they were replaced, all it had to do was make no reference to a specific year. The appellant submitted that it would make no sense to interpret the phrase “as amended from time to time” at subsection 2.9(1) of the regulations to automatically incorporate into the Regulations any replacements of the 1984 Standard with a newer one, such as either the 2008 or even the 1992 version. As put by counsel, the Regulator (Labour Program) represents a Canadian regulatory body, while in contrast, ANSI is a U.S.-American standards organization, and it would thus be unusual, if not suspect, for a Canadian regulator to give up its oversight and delegate its rule-making powers to the standards organization of another country that could be introducing requirements that Canadian regulators would fundamentally disagree with and that should not be adopted without a thorough review.

[16] Secondly, the appellant added that one should differentiate between amendments and replacements, and that the 2008 ANSI Standard should be considered a replacement of the 1984 and of the 1992 Standards rather than an amendment to such. Counsel thus referred to Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence - includes DRDC), 2015 PSLREB 25 (para. 79) stating:

[…] The word “amend” carries with it the meaning of making minor changes or improvements to something, often to an existing text or law. It does not include an intent to fundamentally change or replace the thing being amended […].

[17] Thirdly, adding to the earlier argument regarding the principle that the law always speaks, counsel pointed to the well-established presumption against tautology in statutory interpretation, this being that there are no superfluous words in a statute, quoting from Sullivan on the construction of Statutes (Toronto: Lexis Nexis 2014, at p.211) as follows:

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. In Hill v. William Hill (Park Lane) Ltd., Viscount Simons wrote: “Although a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in a statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.” In R. v. Proulx (1 S.C.R. 61, at. Para. 28), Lamer C.J. Wrote: “It is a well-accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage.” As these passages indicate, every word and provision found in a statute is supposed to have a meaning and a function. For this reason, courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.

For the appellant, it was put that there is an easy and compelling interpretation that avoids redundancy, this being that minor amendments to the 1984 version were to be incorporated by reference without the need for a regulatory amendment, while replacements of the 1984 version of the Standard would require a regulatory amendment, presumably after a proper evaluation of whether such new standards should be adopted for use in Canada.

[18] While the appellant is of the view that it is the 1984 ANSI Standard that applies to the case at hand, counsel argued that even if one were to conclude that it is the 1992, or even that 2008 ANSI Standard that should be applied to the situation, the outcome would need to be the same. In the case of the 1984 Standard incorporated by reference in subsection 2.9(1) of the Regulations, counsel argued that when looking at that standard and at the therein incorporated by reference ANSI A12.1-1973 Standard, one finds no requirement for swing gates stipulated in the standard(s), noting testimony by both Messrs. Kisiloski and Petrick to the effect that there is no need to pass through the railing to access the openings on the offset ladder platforms and that at the top of the building, where such passage is necessary, gates are already installed.

[19] Given counsel’s argumentation in the alternative, the latter submitted that if one were to consider that the 1992 ANSI Standard A14.3 (itself incorporating by reference ANSI Standard A1264.1-1989) applied to this situation, this would mean that the undersigned would give a much wider meaning to the words “as amended from time to time” at subsection 2.9(1) of the Regulations and accept that every new ANSI A14.3 standard would automatically become law in Canada upon its release by ANSI. In counsel’s opinion, the conclusion would still be that the 1992 Standard does not require swing gates either. Noting that the 1992 version of the Standard uses two different words for two different concepts, thus requiring a floor opening to be guarded by a guardrail system and toeboards except at the entrance to the opening and requiring that an entrance way be guarded in order to prevent a person from walking directly into the opening, the appellant submitted that the 1989 standard must receive the same interpretation as the 1973 standard to wit, that it is the entrance way to the ladder system (on top of the roof) that must be separately guarded since otherwise, the wording at section 3.2 of the 1989 incorporated by reference A1264.1 Standard would have stated that the entrance to the opening (as opposed to the entrance way) shall be guarded. Counsel pointed out that expert testimony by Mr. Petrick supports such a conclusion and that the latter had formulated the opinion that a contrary interpretation effectively requiring swing gates at the entrance to the opening as opposed to the top of the ladder system would in fact defeat the purpose of the legislation which is to increase instead of reducing safety.

[20] Finally, again in his argumentation in the alternative, the appellant looked at the latest version of Standard ANSI 14.3 dated 2008, thus post-dating construction of the Weyburn installation, and pointed out that while for the first time, this standard explicitly refers to the concept of “swing gate”, it also expressly states that such protective apparatus is to be installed at each ladder opening “on new fixed ladder installations”, something evidently not the case for the Weyburn installation. According to counsel, even if the Regulations should be interpreted to mandate compliance with ANSI 14.3-2008 rather than the 1984 or 1992 versions it replaced, the appellant would already be in compliance with the 2008 version since at its 6.3.3 subsection, existing installations are exempted from the swing gate requirement. Furthermore, the appellant submitted that even if one were to strain the interpretation of the 2008 version of the Standard by ignoring the reference to “new fixed ladder installations” and give the expression “as amended from time to time” in the Regulations a wider interpretation than warranted, there still would be no requirement for swing gates as the Regulations themselves state that full compliance with the 1984 Standard for existing installations is only required “where reasonably practicable”, noting that this Tribunal recently decided in Lower Lakes Towing Ltd., 2014 OHSTC 2 that “[…] costs in terms of time, trouble and money should be taken into account in determining reasonable practicability”.

[21] In addition, counsel stated that even if it was decided that the 2008 version of the Standard governs the situation, an attentive reading of that standard and close attention to Figures 5 and 6 in that text demonstrate that a swing gate installation is only required in the case of a straight ladder platform, which is not the situation at the Weyburn installation which is equipped with offset ladder platforms, described at Figure 6 as “side-step” ladders. Counsel pointed to the uncontradicted testimony of expert witness Petrick to the effect that swing gates on the offset ladder platforms would detract from safety because of the insufficient room on the platforms to safely open an inward-swinging gate and the possibility of this constituting a hindrance to people evacuating the building and that this also would not constitute good engineering practice. The latter witness explained that the purpose of a straight-ladder platform is to allow someone to take a rest when climbing or descending a straight ladder, and thus its use is not mandatory by someone using the ladder. In contrast, an offset ladder platform such as what is in existence at Weyburn represents an integral part of the ladder system and in an emergency, someone cannot simply bypass the platform. Thus, having someone unable to open an inward-swinging gate on the platform, either because the platform is not big enough to accommodate the gate or because more than one person is rushing to evacuate the facility would decrease safety. The appellant is thus of the opinion that the appeal should be granted for all of the above reasons and the direction rescinded.


[22] The basic question raised by this appeal is simple and quite straightforward, as explained above, and essentially turns on whether the appellant has contravened the Code and its Regulations by not installing a protective device identified as a “swing gate” on the platforms of every ladder segment of the offset ladder system installed on the exterior of its Weyburn facility. As I have noted previously however, what would have been a simple question of regulatory and statutory obligation has been rendered more complicated by the recognition by the author of the direction, endorsed if one can use the word, by the appellant, that the regulatory provisions invoked by Ministerial delegate Wolfe as a necessary element of the contraventions raised in the direction were erroneous, given the date of construction of the installation in relation to the coming into force of the provisions of the Regulations part and parcel of the direction, thus making it obvious that the direction as formulated is not validly applicable to the appellant.

[23] As a result, it has become incumbent upon the undersigned to first determine whether, under the latter’s authority as an Appeals Officer, such formulation can be correctively altered so as to render it applicable to the situation of the appellant and this, quite apart from the issue of whether the appellant has effectively contravened provisions of the Code and what would be the proper appended regulatory provisions. In this regard, one must note that the appellant has freely acknowledged that given the date of the construction of the Weyburn installation and its becoming operational, the provisions of the Regulations that would be applicable to it in principle would be subsections 2.9(1) and 2.10(1) of the Regulations as opposed to 2.9(2) and 2.10(2), thus altering the substance of the obligation to comply from being reasonably practicable to being strictly mandatory. In addition, one certainly cannot ignore the fact that Ministerial delegate Wolfe confirmed her formulation error at the hearing, explaining the cause of such by the erroneous information provided by the appellant at the time of the inspection, an explanation that I consider insufficient for a complete inspection, which, just like an investigation, is an exercise in information collection and confirmation that is the responsibility of the data gatherer. As it stands now, given the unquestionable and uncontested recognition of the wrong regulatory provisions being applied to the situation governing the appellant`s installation, there is no doubt in the undersigned’s mind that the direction issued by delegate Wolfe stands, as originally issued, incorrect ab initio (from the beginning). Such finding would thus bring to the fore the question of whether this can be remedied by the undersigned through an appeals officer amending authority provided at section 146.1 of the Code which states that an appeals officer may “vary, rescind or confirm the decision or direction” being appealed, the necessity to exercise such amending authority being obviously contingent on the appeals officer eventually becoming satisfied through the facts and circumstances of the case of the need to issue a contravention direction that would be a variance of the impugned originally issued direction.

[24] Bringing about the correction rendered necessary by taking into account the proper date of the Weyburn installation being constructed and becoming operational, irrespective of whether contravention(s) existed, would signify invoking as regulatory appendix to the two Code provisions being claimed contravened by the direction under appeal subsections 2.9(1) and 2.10(1) of the Regulations. As previously stated, this would transform the obligations being claimed contravened as strict or mandatory compliance obligations, as opposed to the “reasonably practicable” compliance requirement marking the obligations claimed contravened in the direction under appeal issued by delegate Wolfe. It is true that by acknowledging, as it did, that it is subsections 2.9(1) and 2.10(1) of the Regulations that would find application to the circumstances of this case, the appellant has removed somewhat the difficulty of determining such issue. However, such acknowledgment does not have the effect of altering the direction as issued, which, as I stated above, has to be considered incorrect ab initio, and consequently, in order to possibly find the need for an altered direction to exist on the facts, one must address the question of amending authority as this would concern the actual jurisdiction of an appeals officer to act. The initial question therefore is whether, as appeals officer, I would have the authority to bring about such change or amendment, were I to become satisfied that under paragraphs 125(1)(b) and (a) of the Code, the appellant was required to meet the requirements of subsections 2.10(1) and 2.9(1) of the Regulations.

[25] Section 146.1 of the Code is quite explicit in stating that an appeals officer, in the course of inquiring into the circumstances of a direction, may “vary, rescind or confirm” the direction. The extent of such varying authority was examined at length by Mr. Justice Rouleau in Vancouver Wharves Ltd. v. Canada (Attorney General), (1998) F.C.J. No. 943 (T.D.) as follows:

The word “vary” is defined by The Concise Oxford English Dictionary, Eight Edition, 1990, to mean 1. Make different, modify, diversify; 2. a. undergo change; become or be different. The french equivalent of “vary” is “modifier” which, according to Le Petit Robert Dictionary, 1991, means 1. Changer (une chose) sans en altérer la nature, l’essence”. Clearly then, the word “vary” or its french equivalent “modifier” which has the same force in law, is sufficiently flexible to permit expressing the problem identified by the safety officer in a different manner as long as its nature is not altered.

When Parliament enacted Part II of the Code, it included a purpose clause through which the words and provisions in the Code must be interpreted. It provides:

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.

Hence, we must ask ourselves: what was the purpose of Parliament when it entrusted the Regional Safety Officer (now an Appeals Officer) with the power to vary a direction. Under section 146 of the Code, the Regional Safety Officer already has the power to rescind or confirm a direction. Surely then, the power to vary a direction meant that if the safety officer references the wrong regulation in the direction, the Regional Safety Officer can redress the error as long as the correction accords with the facts reported by the safety officer. The Regional Safety Officer, like the safety officer before him, is guided in his responsibilities by the purpose clause.

[…] to prohibit the Regional Safety Officer from correcting a Safety officer`s direction by identifying the proper paragraph of section 125 of the Code and the proper Regulations would, in effect, negate the powers which the Regional Safety Officer has been expressly given by Parliament pursuant to subsection 146.(3).

[…] the power bestowed by a legislative enactment to “vary” a decision is sufficiently broad to allow the substitution of a new decision. [emphasis added]

[26] In Rudavsky v. Public Works and Government Services Canada, 2016 OHSTC 1, Appeals Officer Strahlendorf referred to the same case law to address the same issue of potential need to vary a direction when determining an appeal. He concluded as follows:

The power to vary a direction given to appeals officers by subsection 146.1(1) of the Code can be used to make minor changes to the wording of a direction or to modify the compliance date and is also broad enough to allow the substitution of a different contravention than the one cited originally provided that the new contravention is concerned with the same issue (problem, hazard, error) as the original contravention.

[…] Following the Vancouver Wharves decision, I have the power to vary a direction issued by (an HSO) by substituting a new contravention for the original contravention cited provided that the new contravention is based on the same facts considered by the HSO. If the concern is with some other failure of the respondent that (the HSO) did not identify, or chose not to identify, then citing a new contravention would constitute more than “varying” the original direction--it would be a new direction.

[27] I have no difficulty in agreeing with what precedes and thus should I, upon consideration of the facts germane to the situation that caused delegate Wolfe to issue the direction she did, conclude to the presence of contraventions requiring the issuance of a direction based on different provisions of the Regulations, it is my opinion that I have the authority to do so pursuant to subsection 146.1(1) of the Code.

[28] The question that remains is thus whether on the facts brought forth, the appellant can be found to have contravened paragraphs 125(1)(b) and (a) of the Code and subsections 2.10(1) and 2.9(1) of the Regulations. The appellant has presented a very compelling argument that given the type of external fixed ladder installed at the Weyburn establishment, there was no requirement to have swing gates installed except at the entrance to the ladder system on the roof of the building. Since there was no opposing argument presented given the absence of a respondent to the appeal, such argument is the only one to consider, albeit the fact that in my capacity of appeals officer, I am not compelled to accept or agree with such. Having considered the argument made by the appellant regarding the wording employed by the legislator at subsection 2.9(1) of the Regulations, I share the opinion that the still present specific reference to the 1984 version of ANSI Standard A14.3 in the Regulations means that this is the version that governs the situation at hand regardless of the fact that the said version has been replaced in 1992 and 2008, that consequently ANSI Standard A12.1-1973 remains the relevant cross-referenced standard and that the said standard does not require that swing gates be installed. Indeed, I agree with the appellant’s submissions that that document merely requires “guard railing with a toeboard” where passage through the railing is necessary (see photograph on first page of Exhibit 5).

[29] Since, as testified by both witnesses Kisiloski and Petrick, it is not necessary to pass through the railing to access the openings on the offset ladder platforms, except at the top of the building where gates have been installed to protect the passage through the railing giving access to the ladder system, I must conclude that the offset ladder platforms currently installed at the Weyburn facility are in compliance with ANSI Standards A14.3-1984 and A12.1-1973 and, therefore, with paragraphs 125(1)(b) and (a) of the Code and subsections 2.10(1) and 2.9(1) of the Regulations.

[30] In addition to the legal argument presented by counsel for the appellant, my conclusion has been reinforced by the documentary evidence presented by the appellant as well as by the testimony of expert witness Petrick who pointed to the difference between a straight-ladder system and platform and an offset-ladder system and platform, explaining that the purpose of a straight-ladder platform is to allow someone to take a rest when ascending or descending, with use of the platform not being mandatory and progress in an emergency not being hindered, while in contrast, an offset ladder platform being an integral part of the ladder system, said platform being impossible to by-pass and an inward-swinging gate detracting from safety due to the limited size of said platform.

[31] Given all that precedes, I have formed the opinion that the appellant was not in contravention of the Code and supporting Regulations at the time of issuance of the direction under appeal. This being said, and there obviously being no basis to maintain the direction as it was originally drafted, there is also no basis for varying or amending that direction to find a contravention to subsections 2.10(1) and 2.9(1) of the Regulations. As discussed above, in view of my interpretation of these provisions, the appellant cannot, on the facts of this appeal, be found to have failed to meet the applicable requirements.


[32] For these reasons, I rescind the direction issued to the appellant by Ministerial delegate Wolfe on March 15, 2016.

[33] Jean-Pierre Aubre

Appeals Officer

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: