2017 OHSTC 1

Date: 2017-01-27

Case No.: 2015-10

Between:

Keith Hall & Sons Transport Limited, Appellant

and

Robin Wilkins, Respondent

Indexed as: Keith Hall & Sons Transport Limited v. Robin Wilkins

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 confirmed.

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

Language of decision: English

For the appellant: Mr. Kevin Hall, Vice-President, Keith Hall & Sons Transport Ltd.

For the respondent: Himself, but Mr. Robin Wilkins did not participate in the hearing.

Citation: 2017 OHSTC

Reasons

[1] This appeal has been brought pursuant to subsection 146(1) of the Canada Labour Code (the Code) by Keith Hall & Sons Transport Limited (the appellant) against a direction issued under paragraph 145(2)(a) of the Code by Ms. Michelle Sterling, an Official Delegated by the Minister of Labour (Ministerial Delegate). That direction was issued by the Ministerial Delegate on May 15, 2015, at the conclusion of her investigation into a refusal to work by Mr. Robin Wilkins, who was at the time employed by the appellant as a truck (tractor-trailer) driver.

[2] It was the conclusion of the Ministerial Delegate that the performance of an activity constituted a danger to employee Wilkins while at work, said danger being more specifically enunciated by the Ministerial Delegate as being “a danger for Mr. Wilkins to pull a 53’ trailer and load and unload this type of vehicle without being informed of the hazards associated with these activities and receiving the instruction and training necessary to protect against these hazards”. As a legal basis under the Code supporting her conclusion and direction, the Ministerial Delegate invoked Part XIX of the Canada Occupational Health and Safety Regulations (the Regulations), titled Hazard Prevention Program, more specifically paragraph 19.6(2)(b) of such, which states:

(2) The employer shall provide education to an employee
(b) shortly before the employee is assigned a new activity or exposed to a new hazard.
(underlining added)

On November 4, 2015, further to a hearing held on July 2, 2015, and having taken into consideration the submissions made by the appellant, I dismissed the appeal and confirmed the direction issued by the Ministerial Delegate. Following are the reasons for this decision.

Background

[3] The situation that gave rise to Mr. Wilkins’ work refusal arose on March 23, 2015, when he was informed by the appellant’s U.S. tanker board dispatcher (S. Lowes) of there being no tanker load available to be assigned to him on that day. Upon being subsequently called by the appellant’s head dispatcher (A. Sheppard), Mr. Wilkins was told that he would instead be required to take a “reefer” load (a 53’ refrigerated trailer unit) to New Jersey, USA.

[4] Mr. Wilkins, who held the necessary AZ licence to operate a motor vehicle of a certain size equipped with air brakes since approximately 1994, thus tractors required to pull such a 53’ trailer, had been a truck driver employee of the appellant since April 15, 2011, thus close to four years at the time of the work refusal. He had been hired or at least professed to having been hired specifically to pull tankers, which are shorter and of a lesser height than 53’ trailers, and had done so exclusively since his employment had begun as well as during a preceding period of employment at another trucking firm, Kinsdale Transport. According to the investigation report prepared by the Ministerial Delegate, Mr. Wilkins had thus been exclusively pulling tankers since 2010. There is, however, evidence indicating that upon his hiring, his initial employment road test (conducted under the supervision of Kevin Hall) involved pulling an empty 53’ trailer for approximately 60 km (city and highway) and that on a single occasion in 2012, Mr. Wilkins did in fact pull an empty 53’ trailer in a “switch out” (replacement) operation from the appellant’s Burford, Ontario yard to Dorchester, Ontario and back, for a total of 128 km and 3.5 hours of driving.

[5] It appears from the investigation report that while Mr. Wilkins had experience with driving various types of trucks, apart from what is stated above, he had never “pulled” a 53’ long trailer, and prior to the latter’s work refusal, had received from the appellant employer no road training for such trailers nor any training on pulling, loading or securing loads on such 53’ trailers. More specifically, Mr. Wilkins had informed the health and safety committee, when his refusal was being investigated, that having never pulled a trailer of that length, he did not know how to move the axels on the trailer to shift, and one would assume balance, weight, or how to properly load the trailer and that such a 53’ trailer is different in length and height than what he was used to with a tanker. The investigation report notes that a tanker (trailer) is 48’ in length and between 11’ and 12’ in height, compared to a “reefer” trailer which is 53’ in length and 12’6’’ in height, that the load in a tanker is liquid and will move within the tank from front to back and that the wind resistance is different in a 53’ trailer, especially if the trailer is empty, as opposed to a tanker. Added to those measurements is also, in both cases, the length of the tractor. The health and safety committee concluded that there was no danger that would justify Mr. Wilkins’ refusal.

[6] The Ministerial Delegate’s report notes however that following Mr. Wilkins refusal to work, the appellant did provide the latter with thirty (30) minutes of training on April 2, 2015. Said training however did not include any driving or pulling of a 53’ trailer. Noteworthy, as per the same report, is the fact that the appellant provides all new hires with an employment manual which includes health and safety information, that newly hired drivers are all required to receive on-road training and mentoring with driver/trainer Earl Gowdy and thus, that no new driver is allowed to drive alone until Mr. Gowdy has completed one (1) week to one (1) month of on-the-road training and believes that the driver can operate a tractor trailer safely. It is also noted in the investigation report that the appellant’s response to Mr. Wilkins work refusal was to state that:

Wilkins is a qualified AZ driver with approximately 20 years of experience driving tractor trailers of various types” and that it “believes that it is actually more difficult to pull a tanker than it is to pull a 53’ trailer as the loads don’t typically move in those types of trailers as they do in tankers. (…) pulling a 53’ trailer is not much different than a tanker when it comes to height and length and (…) driver’s (sic) need to be aware of their surroundings at all times and should therefore be able to operate any type of trailer if they have an AZ licence.

[7] While the work refusal by Mr. Wilkins that is central to the present appeal formally occurred on March 25, 2015, the investigation report of the Ministerial Delegate into said refusal also mentions an apparent prior refusal to work by Mr. Wilkins, this one occurring on April 28, 2014, for essentially the same reasons, concerning which no investigation pursuant to the Code was conducted because, as explained by Kevin Hall to Ms. Sterling in the course of her investigation into the present refusal, “it was not clear that Wilkins was refusing to work because of danger under the Canada Labour Code.”

[8] As noted above, Mr. Wilkins took no part in the hearing of the present appeal, and the sole witness heard at said hearing was the Ministerial Delegate since the appellant chose not to present any witness. In the course of the Ministerial Delegate’s investigation into Mr. Wilkins’ refusal action, the latter provided Ms. Sterling with a written statement explaining his position which, given the minimal amount of evidence submitted at the hearing, needs in my opinion to be reproduced at length. It reads as follows:

Career started in 1994 when I started driving for landscaping company. I was trained for small equipment initially but gradually moved up to driving dump truck and float (for which I received adequate training). From there to specializing in hauling heavy loads. After selling my business in 2010, I started working for Kinsdale Transport where I was trained on Pneumatic Tank.

In 2011 I applied for and secured a position on the U.S. Liquid Chocolate Tanker Board with Keith Hall. My primary dispatcher is Steve Lowes. In all my years of driving I have only pulled an empty van trailer for my road test and one other time for Keith Hall when I had to do a local switch out. I was very uncomfortable even then. Vans are much longer and taller than I am used to. They pull differently as well they are loaded differently. I feel being forced to drive something I have no real experience with presents a danger to not only myself but to others, as well as (to) the company’s equipment.

In the spring of 2013 there was discussion of training drivers with no experience. That never happened.

On 28th April 2014, I was assigned to do a reefer load. I refused as I was not comfortable driving it. I was brought in for a meeting with Kevin Hall. He asked me why I refused the load and why shouldn’t he fire me? When I tried to tell him that I was not comfortable doing the load because I didn’t feel safe, he told me not to go down that road as that was “F(…) bullshit”. He told me that he didn’t know whether he should fire me or suspend me. In the meeting Kevin said that I was a good employee and that it was his dilemma. I was sent home without knowing my fate. Kevin called me at the end of the day and said that he was suspending me for 3 days. This was my first time being in any sort of trouble. I wasn’t given any kind of verbal or written warning. It was an automatic 3 day suspension.

On 23rd March 2015 I called my dispatcher in the morning. He asked me to call back in the afternoon. While I was servicing my car that afternoon I got a call from Al, the head dispatcher that I was assigned a Reefer load going to New Jersey. I explained to him that I was not comfortable pulling a van since I did not have any experience. He said I did not have a choice since all the other drivers were busy and I was the only one available. I refused the load as I did not feel safe crossing the border with it. He said we will have to get you trained but he was taking my refusal to Kevin Hall.

Shortly later I received a call from Kevin Hall. He asked me what was going on. And I explained to him the situation. He told me that I had to be in New Jersey for 1 pm the next day with the Reefer load. I said I did not feel safe. He told me to come and clean out my truck. I asked him if he was firing me and he said no. He said I needed to come in the next morning to sign a piece of paper.

I called Labour Board after that conversation.

[9] In her investigation report, the Ministerial Delegate stated the following as her rationale for arriving at the conclusion of “danger”, as defined in the Code, warranting the issuance of the direction under appeal:

Although the refusing employee is a truck driver with approximately twenty (20) years of experience, he has no experience or training pulling a 53’ trailer. The employer trains all new employees on proper driving, loading, securement (sic) of loads, etc., and requires the driver trainer to confirm that the driver has the abilities and knowledge to safely pull a 53’ trailer. The employer has provided no such training to Mr. Wilkins. The employee has not been informed of the hazards pertaining to the loading/unloading of the trailer and trained on the safety procedures to be taken to protect against them.

[10] In formulating her conclusion, the Ministerial Delegate relied upon the Employment and Social Development Canada (ESDC) Labour Program’s Interpretation, Policy and Guideline 905-1-IPG-062 (IPG) adopted in October 2014, to assist in the interpretation of the recently amended definition of “danger” in the Code, to state that, under the new definition, it is not necessary to establish a specific time that a threat to life or health will materialize, only that it could reasonably be expected to materialize. Furthermore, she found that while such threat must be substantial, it also includes potential substantial threats. Having found that Mr. Wilkins had not received any training on how to pull a 53’ trailer and had not been advised of all known or foreseeable health and safety hazards associated with this activity, Ministerial Delegate Sterling concluded that “there is a serious threat to Mr. Wilkins’ life or health as a result of this activity as the activity involves operating a motor vehicle of significant weight and his lack of training could result in an accident with significant consequences.”

[11] As the sole witness heard at the hearing into this appeal, the Ministerial Delegate underwent extensive examination by the undersigned, during which she did not detract in any significant manner from what is stated in her investigation report. In the course of such, it was established that she presently is senior investigator/technical coordinator with the Labour program, that she has been employed at Labour since 2008, first as a Labour Standards Officer before becoming a Health and Safety Officer, that in her previous employment with the Canada Border Services Agency, she underwent an intensive nine weeks investigation training which was complemented, when at Labour, with the RCMP investigation training course, Level I. As to her knowledge or experience with the transportation industry, when answering the sole question put to her by the appellant in cross-examination, she indicated never having driven or been trained specifically on AZ truck licensing, her specific knowledge on the matter resulting from research and reading.

[12] She also indicated having acquired knowledge and experience regarding trucking and transportation using tractors and trailers while employed at CBSA, primarily from a commercial/border perspective and at Labour where 80% of her time is dedicated to the transportation industry, particularly road transport and trucking. As to her conclusion of “serious” threat in this case and her appending thereto the qualificative “substantial”, derived from the IPG previously mentioned, the Ministerial Delegate explained that the activity of driving and operating a 53’ tractor/trailer (70’ inclusive of the tractor) may entail, in and of itself, hazard, due to the type of equipment, weight, load and load shift involved, that would not necessarily amount to the serious threat that would qualify such as “danger” under the Code where proper training has been given and received. However, the lack of such training does bring such hazard within the scope of serious threat and danger. In the case at hand, Ms. Sterling paid particular attention to the fact that the appellant employer requires its new hires to have many weeks of training and internal training by the company trainer and that Mr. Wilkins received no such education.

Issue

[13] The direction under appeal was issued pursuant to paragraph 145(2)(a) of the Code and constitutes what is normally referred to as a “danger” direction where the Ministerial Delegate found that the lack of information on the hazards associated with the task of pulling, loading and unloading a 53’ trailer and the failure to receive instructions and training necessary to protect against such hazards rendered the performance of that activity or task dangerous for the employee asked to perform such. According to the Ministerial Delegate, this is particularly so where the task being asked of the refusing employee is new to the latter or its performance has not been asked of the said employee in the course of the latter’s employment with the employer who, under the regulations made under the Code, is required to provide education to an employee shortly prior to that employee being assigned a new activity or exposed to a new hazard.

[14] In light of the foregoing, the issue to be determined is whether in the said circumstances, Mr. Wilkins was exposed to a danger as defined under the Code when he exercised his right to refuse to work. Simply put, I have to determine whether Ministerial Delegate Sterling’s direction is well-founded having regard to the evidence before me and the requirements of the Code.

Submissions of the appellant

[15] As previously noted, the sole witness heard at the hearing was the Ministerial Delegate. While the undersigned explained to the appellant, at some length, the appeal hearing procedure and, in particular, the opportunity that was his to submit final submissions in writing following conclusion of the in persona hearing and thus benefit from an interlude to structure what would evidently amount to a reply to the conclusions expressed by the Ministerial Delegate in her direction and her testimony, the appellant, who opted for self-representation and did not testify or present any witness, chose to provide the undersigned with a multi-pages document made up of elements that would be in part of an evidentiary nature, such as pictures of various trailers and documents concerning Mr. Wilkins, as well as some commentary relative to the situation being examined in this appeal. Although I am not bound by the usual rules governing the admissibility of evidence, I nonetheless provided Mr. Hall with considerable explanation regarding the usual manner of submitting documentary evidence through a witness and the fact that in the absence of such and, consequently, the lack of an opportunity to subject the contents of such to any questioning, the contents of his materials might be viewed with some reservation by the undersigned. The appellant nonetheless asked the undersigned to consider and treat this collection of documents with added commentary as his final submissions.

[16] The first part of the document package consisted of five photographs of the tractor/trailer units in use in the appellant’s operations and demonstrated the different configurations, lengths and heights between tankers, bulk tankers and reefer units. This appears to confirm the differences in dimensions between a tanker and a reefer van noted in the report of the Ministerial Delegate. This was followed by a two-page document, which appears to be Mr. Wilkins’ résumé describing the latter’s work experience and qualifications, and a four-page document representing Mr. Wilkins’ application for employment at Keith Hall & Sons Transport Ltd. on January 31, 2011, with his employment history.

[17] It bears noting here that the appellant drew attention of the undersigned to the fact that the said application for employment indicated that the position applied for was simply AZ Driver with no qualifiers. It was explained however that what Mr. Wilkins’ reference to U.S. Liquid Chocolate Tanker Board essentially amounts to a notice board or posting board where notices of employment offers or other information relative to the company’s tanker operations would be posted. Those documents are followed by what appears to be pictures drawn from the internet claiming to show different types of tractor/trailer units in use at a former employer of Mr. Wilkins (Kinsdale Transport) or that Mr. Wilkins would presumably have used to carry armour stones, as the latter indicated he did in his résumé, as well as trucks (tri-axle) that Mr. Wilkins may have used, in both cases when functioning as owner/operator. As Mr. Wilkins did not take part in the hearing, there was no confirmation of this from the latter.

[18] The following three pages of this document package represent the results of Mr. Wilkins’ road test administered by the appellant upon the latter’s initial employment. It bears noting here that the said road test was administered by the appellant’s representative at the hearing, Mr. Kevin Hall, and that the document shows that Mr. Wilkins was not tested on the subject of Handling of Freight, under the following four items: checks freight properly, handles and loads freight properly, handles bills properly, breaks down load as required. The next document, titled trip report, concerns the single “switch out” trip where Mr. Wilkins pulled a 53’ empty reefer van, this having been noted in Ms Sterling’s report. This is followed by a signed acknowledgment by Mr. Wilkins that he has read and understands the company policy and guidelines and the health and safety policy as well as the disciplinary procedures of the company and agrees to abide by their terms and conditions. However, apart from this document, the text of the said policies, guidelines and procedures is not part of the document package filed by the appellant. Added to this is what appears to be the generic job description and conditions of employment in application at the appellant’s work place as well as numerous pages dealing with various driver skills and excerpts from the Federal Motor Carrier Safety Regulations, on cargo securement, adopted under the US Federal Motor Carrier Safety Act.

[19] Finally, presented en liasse are four statements bearing the signature of drivers employed by the appellant, including Mr. E. Gowdy who is the driver trainer in the service of the appellant. All of those statements formulate essentially the same point to wit, that driving or “pulling’ a 53’ reefer van is no different from pulling a tanker van, is even less difficult or hazardous and requires no special training, except as to the operation of the actual refrigeration unit. Apart from the obvious intent of said statements to buttress the position of the appellant, it bears noting that none of those statements were presented by their authors at the hearing and obviously, no questions could be put to them by the undersigned on substance, including the basis of such affirmations.

[20] As part of what the appellant presented as his final submissions, the latter added to the above documents a commentary obviously destined to explain the appellant’s position vis-à-vis the conclusion arrived at by the Ministerial Delegate, and the outcome it is seeking to this appeal. Relative to the statement by the refusing employee that he was uncomfortable pulling a van/trailer because of his lack of experience, which would mean a danger to himself, others and the appellant’s equipment, it is the position of the appellant that Mr. Wilkins is a licensed AZ driver with approximately 20 years experience in driving tractor/trailer units. In the four years of his employment by the appellant, his primary duties were on the U.S. Tanker board, such type of tanker being licensed for a gross weight of 37000kg (80,000 pounds). As regards load weight, Mr. Wilkins’ previous employment résumé shows that with both Kinsdale Carriers and Wilkins Tri-Axle, he had operated equipment up to a gross weight of 63500 kg (140,000 pounds), including flatbed work or transport that would necessitate knowledge of load securement, which means that Mr. Wilkins would have had experience with equipment capability exceeding by 26,500 kg (59,000 pounds) the maximum or gross weight carrying capacity of the appellant’s tankers (37,000 kg/80,000 pounds).

[21] As regards the “Road Test” pulling a 53’ trailer administered to Mr. Wilkins by Keith Hall, whose role was not one of trainer but strictly one of observer of Mr. Wilkins’ abilities as a driver, Mr. Hall notes that at that time, Mr. Wilkins raised no issue or complaint regarding the pulling of a 53’ van, nor did the latter raise any complaint in this regard on the sole occasion, on November 29, 2012, when asked to pull a 53’ van in a switch out trip. At the time of the said “Road Test”, Mr. Hall saw no issues with Mr. Wilkins’ ability to operate/pull a 53’ trailer and he was of the opinion that the latter did not require any training in regards to his driving ability. Mr. Hall argues that he has himself been driving trucks of different configurations for 32 years and that he is convinced that driving (he presumably means “pulling”) a tanker or 53’van/reefer is the same. The general driving dynamics, characteristics, knowledge and ability are exactly the same. Every out of the ordinary situation requires the driver to think, for instance, on how wide to take a corner or what distance to maintain between vehicles.

[22] In his professional opinion, driving (pulling) a tanker is more difficult because the product (load) is mobile/moving, and a driver needs to be more conscious of such fact and allow for slower speeds on corners and greater stopping distance when breaking. However, general driving dynamics and characteristics remain the same. Noting that the Ministerial Delegate’s report makes mention of differing reactions to wind between a tanker and a 53’ van, Mr. Hall acknowledges that the wind affects tankers and 53’ van in different ways but argues that a driver must simply be aware of changing elements and drive accordingly. As a whole, the appellant argues that the driving of any large vehicle of any configuration offers the same dynamics and characteristics. Truck driving comes with inherent dangers that are unforeseeable, such as black ice or weather, mechanical failures, other motorists, road closures, missing or unreadable street signs, bad directions, etc. However, as an experienced driver, Mr. Wilkins would be fully aware of the inherent risks and hazards that are part of driving tractors and pulling large trailers.

[23] On the subject of training, the appellant submitted that Mr. Wilkins did receive training upon being hired, training that would have mainly concerned the actual operation of the tanker itself, such as pump, heating system, PTO systems, loading and unloading procedures and weight distribution for axles, etc.. It is the appellant’s position that as Mr. Wilkins was an experienced driver, no specific driving training would have been given as learning how a “tanker drives” is best learned by actually driving. At the same time, the appellant agrees that Mr. Wilkins may not have had knowledge as to the actual operation of the reefer unit, but in the latter’s opinion, this can be easily explained in less than five minutes and while the operation of the unit could and would affect the product being carried in the refrigerated unit, this would in no way affect the safety of the employee doing the actual driving. Referring to the conclusion arrived at by the Ministerial Delegate that a danger existed in the investigated situation, the appellant notes that no claim of danger was made by Mr. Wilkins on the two previous similar occasions where he drove/pulled a 53’ trailer for the appellant.

[24] In closing, having noted all the characteristics of this case, the appellant does not challenge the conclusion that no training was given to Mr. Wilkins, choosing instead to argue that as an experienced driver, as demonstrated by the evidence brought forth by the appellant regarding previous driving experience and the experience at the appellant’s per se, Mr. Wilkins did not need training. According to the appellant, Mr. Wilkins had past experience on cargo securement and furthermore, a driver is not involved with the loading and unloading of trailers since this falls within the responsibility of shippers and receivers. As to the actual driving, the appellant concludes generally that the operation and driving of a 53’trailer is no different than that of a 48’or 45’ trailer since the operating characteristics are the same. As a trained and qualified AZ driver, Mr. Wilkins had knowledge and experience with many different types of transportation equipment and, with 20 years of driving experience, he would be aware of any known dangers involved with the duties of truck driving. Mr. Wilkins’ health and safety in performing the duty he refused to execute was therefore not in danger and the appeal should thus succeed and the direction rescinded.

Analysis

[25] Section 122.1 of the Code states that the purpose of Part II of the Code, titled Occupational Health and Safety, is the prevention of “accidents and injury to health arising out of, linked with or occurring in the course of employment” to which that part applies, and thus the reading of any provision of that part is to be governed by the substance of said statement of purpose in receiving such fair, large and liberal construction and interpretation as would best ensure the attainment of its objects (Interpretation Act, R.S., 1985, c. l-21, section 12).

[26] In the case at hand, Mr. Wilkins invoked his right to refuse to perform work that he considered dangerous, pursuant to subsection 128(1) of the Code. This provision is one of many ways by which the purpose of the Code to prevent accidents and injuries and ensure a safe work place can be achieved.

[27] To exercise his right under subsection 128(1), an employee must have a reasonable cause to believe that he is exposed to a “danger”, a term that is defined in subsection 122(1) of the Code. The existence of a “danger” is also a prerequisite for the issuance of a direction under paragraph 145(2)(a), such as the one that is at issue in this appeal, to an employer by the Minister of Labour (through its delegate). My task under section 146.1 of the Code is to conduct an inquiry for the purpose of making a determination, on an objective standard, as to whether there was in fact a danger at the time of the refusal.

[28] The refusal to work by Mr. Wilkins and the conclusion of danger arrived at by the Ministerial Delegate are both centered on the claim that a danger existed due to the lack of training provided to Mr. Wilkins when asked to perform a certain task, described by the Ministerial Delegate as a new task since Mr. Wilkins had not been asked to pull a 53’reefer unit during the entirety of his employment with the appellant, with the exception of a switch out short trip as previously described.

[29] In order to assess whether the direction was well-founded, I must determine whether, in these circumstances, Mr. Wilkins was in fact exposed to a danger as defined under the Code when he exercised his right to refuse to work. It is worth noting that Mr. Wilkins’ refusal was made under the provisions of the Code that were amended by the Economic Action Plan 2013 Act, No.2, S.C. 2013, c. 40, including a new definition of “danger”, and that came into force on October 31, 2014.

[30] I am therefore required to interpret and apply that new definition which, as previously stated, is central to an important aspect of the architecture of protection afforded by the Code. However, given that the parties in this appeal were not represented by legal counsel, they have, understandably, not addressed this important legal issue in their submissions. As such, I must determine whether the respondent was exposed to a “danger” at the time of the work refusal without the benefit of submissions on the legislative history of the definition of “danger” and on the interpretation the current wording ought to be given.

[31] In my view, it is preferable for such an important legal question to be analyzed with the benefit of more substantive legal submissions. For this reason, this is not the ideal case to ascertain whether and, if so, to what extent, the amendment to the definition of danger has had the effect of altering the intrinsic meaning of the notion, as described in the considerable body of precedents from the Federal Court and other appeals officers interpreting the previous definition. With that being said, I must use the new definition and fashion a test for its application to the facts of this appeal.

[32] The former definition of danger described such as meaning:

any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.

In comparison, the most recent definition of “danger” describes such as meaning:

any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.

This new definition remains, as the former, built on the concepts of “hazard, condition or activity”.

[33] A comparative reading of both texts causes this reader to draw the conclusion that in fashioning this new definition, the legislator intended first to somewhat do away with what one might refer to as the wordiness of the former definition. More specifically, where the words in that definition “any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system”, could be interpreted as being part of what the said definition enunciated as “any existing or potential hazard or condition or any current or future activity” due to the use of the words “and includes” prior to explicitly referring to said exposure to a hazardous substance, the use in the most recent definition of the non-restrictive word “any” in front of the words “hazard, condition or activity” can conceivably also be interpreted as incorporating what the former definition described as “any existing or potential hazard or condition or any current or future activity”, inclusive of exposure to a hazardous substance.

[34] Indeed, it would in my view be an error to conclude that such exposure to hazardous substances which could cause harm to employees, maybe not immediately but in the long run, can no longer amount to a danger just because the adverse effects on health are not imminent. This conclusion would be contrary to the purpose of the Code, which is obviously better served where, as was expressly stated before the amendment, the exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system, may constitute a danger. Accordingly, one has to be careful before concluding that the removal of certain words in the amended definition necessarily means that the latter is more restrictive than the previous definition.

[35] Furthermore, where the former definition spoke in terms of exposure to a hazard, condition or activity that could “reasonably be expected to cause injury or illness” before it could be corrected or altered, therefore that would have the reasonable potential to cause said injury or illness before corrective action occurred, with the added proviso that said possible consequence did not need to occur immediately after said exposure, the new definition simply speaks of the reasonable expectation that “any” hazard, condition or activity could be “an imminent or serious threat to the life or health” of a person exposed to it.

[36] In my opinion, it would also be an error to interpret this phrase as restricting the concept of danger to those hazards, conditions, or activities that could cause harm immediately or shortly after the exposure. On its face, the text of the definition contemplates two types of danger, namely those hazards, conditions or activities that could reasonably be expected to be an imminent threat to life or health or those that could reasonably be expected to be a serious threat to the life or health of employees.

[37] Clearly, the use of the disjunctive “or” signals that an imminent threat need not be serious and a serious threat need not be imminent. If Parliament intended to restrict the scope of the notion of danger to those hazards that can have both an immediate (in terms of time proximity) and serious (in terms of severity) adverse impact on the life or health of employee, it would have used terms such as “immediate and serious threat” in the amended definition.

[38] In that sense, where the former definition stated the possible proximity of consequences from exposure to a hazard, condition or an activity as an alternative (but not the exclusive path) to conclude to the existence of a danger by using the words “whether or not the injury or illness occurs immediately after the exposure(…)”, [underlining added] the new or amended definition equally deals with the possible proximity of consequences from exposure as a non-exclusive way to determine that a danger exists by using the words “could reasonably be expected to be an imminent (…) threat to the life or health of a person exposed (…)”.[underlining added] However, the analysis does not stop there. Alternatively, even if the threat is not on the verge of materializing into harm, a danger may be found to exist to the extent that a hazard, condition or activity could reasonably be expected to be a “serious threat to the life or health of a person exposed (…)”.

[39] This interpretation is consistent with the previously mentioned ESDC Labour Program’s IPG. In that document, an imminent threat is defined as meaning “a threat on the point of happening”, thus a sense of immediacy, while a “serious” threat is described as meaning “a substantial threat to health or life and includes a potential substantial threat”, thus a sense of severity, and “life or health” is described in very broad terms as including “injury and illness.” Accordingly, it would in my view be legally incorrect to conclude that the new definition means that the concept of danger is restricted to what can be understood to be an imminent danger.

[40] It also warrants noting that the concept of reasonable expectation remains included in the amended definition. While the former definition required consideration of the circumstances under which the hazard, condition, or activity could be reasonably expected to cause injury or illness, the new definition requires consideration of whether the hazard, condition, or activity could reasonably be expected to be an imminent or serious threat to the life or health of the person exposed to it. In my view, to conclude that a danger exists, there must therefore be more than a hypothetical threat. A threat is not hypothetical where it can reasonably be expected to result in harm, that is, in the context of Part II of the Code, to cause injury or illness to employees.

[41] For a danger to exist, there must therefore be a reasonable possibility that the alleged threat could materialize, i.e., that the hazard, condition or activity will cause injury or illness soon (in a matter of minutes or hours) in the case of an imminent threat; or that it will cause severe injury or illness at some point in the future (in the coming days, weeks, months or perhaps even years) in the case of a serious threat. It warrants emphasizing that, in the case of a serious threat, one must assess not only the probability that the threat will cause harm, but also the seriousness of the possible harmful consequences from the threat. Only those threats that can reasonably be expected to cause severe or substantial injury or illness may constitute serious threats to the life or health of employees.

[42] There flows from the above considerations, in my opinion, that the following questions must be examined in order to determine whether a danger exists:

  1. What is the alleged hazard, condition or activity? (that is, what is the alleged source of harm or risk?)

  2. a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?

    Or

    b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?

  3. Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

[43] In the case at hand, it is important to note anew that the Ministerial Delegate based her direction to the appellant on the risk of performing an activity (pulling, loading and unloading a 53’ trailer) without being informed of the associated hazards and receiving the necessary protective training shortly before performing such activity, presented as a new task. The appellant employer, on the other hand, took the position that Mr. Wilkins, being an experienced truck driver of some twenty years, both as an owner-operator and driver employed by another undertaking as well as by the appellant, and holder of an AZ licence, did not require such health and safety education as prescribed by the Regulations made under the Code in the case of a new task, and had been hired to drive/pull generally as opposed to a specific type of trailer, in this case a tanker.

[44] In fact, the employer’s arguments against the direction focused on its claim that Mr. Wilkins was qualified to perform the task that was assigned to him on the day of the work refusal. In the employer’s view, Mr. Wilkins was therefore not asked to perform a new hazardous activity when he exercised his right to refuse to work under the Code. This is the basis upon which the employer disputed the Ministerial Delegate’s conclusion. Accordingly, the focal point of the employer’s allegations in this appeal is the absence of a hazard, condition or activity that could constitute a danger.

[45] In this respect, however, the appellant employer did not contest and essentially admitted that over the approximately four years that Mr. Wilkins had been employed by the appellant, the latter had solely driven/pulled a specific type of trailer, a tanker, which in size and handling, would be somewhat different from the 53’reefer unit which caused the refusal to work. The information provided to the Ministerial Delegate as well as the evidence presented at the appeal hearing, coupled with the appellant’s lack of contest that Mr.Wilkins had solely pulled tankers during his employment, support a conclusion that when the latter was asked to drive/pull a 53’ reefer unit, this constituted a new task. Whether Mr. Wilkins was initially hired to drive/pull any type of tractor/trailer unit, as claimed by the appellant, but not confirmed or contradicted by the evidence, is of no consequence as it is the factual circumstances of the tasks effectuated during the time of employment that are of relevance and, in this regard, must govern the conclusion.

[46] The position taken by the appellant employer as to the sufficiency of Mr. Wilkins’ past experience gained elsewhere validating the lack of need or the actual absence of specific education and training by the actual employer vis-à-vis the new task the employee was being asked to perform raises the question of whether in such circumstances of a so-called experienced driver, therefore one where such experience may have been gained elsewhere, the obligation of health and safety education retained by the Ministerial Delegate applied to the appellant. This is easily answered when one reads the Code as a whole and applies the definitions of “employer” (a person who employs one or more employees….) and “employee” (a person employed by an employer) to such, which essentially establishes directly and/or through the regulations made pursuant to said legislation, obligations to be satisfied by the employer and employees. In this respect, one notes that the regulation invoked by the Ministerial Delegate in support of her direction to the appellant speaks of the employer having the obligation (shall) to provide education to an employee to whom the employer assigns a new activity, and to do so “shortly” before such new activity is assigned.

[47] When all these elements are taken as a whole, it is clear, in my opinion, that the obligation to provide such education to then employee Wilkins fell upon the employer of the day, the appellant. The latter has admitted by its position in the present case that it did not consider necessary to provide such education to Mr. Wilkins by reason of his previous experience and the fact that the latter had been hired to “drive” a tractor. While I may be prepared to accept that the existence and knowledge of an employee’s past experience may alleviate the extent of the education that would be needed to satisfy the employer’s obligation, this does not exempt the employer from the obligation as such and of the obligation to ascertain the extent to which the past experience may affect the coverage of said education. Furthermore, I do not share the opinion expressed by the appellant that, in regards to the said needed education, Mr. Wilkins had been hired primarily to “drive”. An undertaking such as the one operated by the appellant is not solely a driving undertaking but rather a transportation, a road transport, undertaking which, in the course of its activities, as demonstrated by the appellant in the course of the hearing, requires its employees, drivers, to drive/pull various loads using a variety of trailers, each presenting their own characteristics. As such, given the history of Mr. Wilkins’ service with the appellant, being asked to drive/pull a reefer constituted a new task or, to use the wording of the Regulations, his being “assigned a new activity”.

[48] Given all that precedes, all the elements are present to find that the appellant was in contravention of the Code and its regulations when it failed to provide its employee the required health and safety education shortly prior to assigning a new activity to said employee. As stated above however, the issue raised by this appeal, given the substance of the direction issued to the appellant, is whether such a situation amounted to a danger as defined in the Code.

[49] In this respect, it is also clear, based on the evidence before me, that performing this new activity without having received the appropriate and mandatory training presents inherent risks or hazards. I therefore agree with the Ministerial Delegate that Mr. Wilkins was required to perform a hazardous activity on the day of the work refusal. An essential element upon which such determination must stand is the fact that the appellant has recognized and admitted, that there are inherent hazards associated with the driving/pulling of various trailers and loads. In this respect, one would be loath to ignore that there was such admission.

[50] To determine whether the performance of this activity, without having received the instructions and training necessary to protect against these hazards, constituted a danger as defined under the Code, the next issue to consider is whether it could reasonably be expected to be an imminent or serious threat to the life or health of the person exposed to it, namely, Mr. Wilkins. As discussed above, this requires assessing the probability that the performance of the hazardous activity will result in injury of illness.

[51] For me to conclude to the existence of an imminent threat to the life or health of Mr. Wilkins in this case, there must be evidence demonstrating that there was a reasonable possibility that his performance of the new task that was assigned to him on the day of the work refusal would cause harm (i.e., injury or illness) in a matter of minutes or hours. While the possibility of an accident causing injury to Mr. Wilkins on that day cannot be excluded in view of his lack of training, there is insufficient evidence to persuade me that the threat to his life or health would have likely materialized in the next few hours, had he not refused to work. I simply do not have enough information on the circumstances prevailing on that day to conclude that an accident could have reasonably been expected to occur or was on the point of happening.

[52] However, the direction is based on the existence of a serious threat to Mr. Wilkins’ life or health as opposed to an imminent threat. Again, to conclude to the existence of a serious threat, it is not necessary to establish precisely the time when the threat will materialize. One must assess the probability that the alleged hazard, condition or activity will cause serious (i.e., severe) injury or illness at some point in the future. The issue is whether the circumstances are such that the threat can reasonably be expected to result in serious injury or illness, even if the harm to the life or health of the employee might not be imminent.  

[53] In this regard, one cannot ignore, and it was not contested, that driving/pulling conditions may be affected by the size (height and length) and shape of a trailer, the load carried as well as its balance, securing and the trailer axle positioning. In point of fact, one only needs to have had occasion to follow such trailers on the public highway in varying conditions to realize the impact of diverse traffic and environmental circumstances on the driving and handling of such units. In addition, and this also is of importance, is the fact that this issue originated with an employee raising before the fact, on his own, the latter’s lack of competence and experience in handling a certain type of trailer and load, essentially raising the latter’s lack of training relative to that employer’s training policy vis-à-vis its other employees, with that employer’s response being that no danger existed relative to the employee effectuating such new task or activity and thus no education and training being required.

[54] While I have concluded above that employee Wilkins had been tasked with effectuating a new activity and that shortly before this, the appellant employer had not seen fit to provide the latter with the prescribed needed health and safety education relative to that new activity, albeit having consideration to the fact that said employee had considerable diverse driving/pulling experience, something that could impact on the extent of said needed education, and that consequently the appellant was in contravention of the Code and its Regulations, I have also come to the conclusion that all of those elements put together made the activity that Mr. Wilkins was asked to execute an activity that could be reasonably expected to seriously threaten his life or health before it could be altered or, using the vernacular, it potentially represented “an accident waiting to happen”. This means that, in the circumstances of this case, the answer to question 2(b) in the test enunciated at paragraph 42 above is ‘yes’.

[55] In my opinion, there was a serious threat to the life and health of Mr.Wilkins since he was required to operate a motor vehicle of significant weight that was different in important respects than the vehicles he normally operates and, given his lack of training, there was a reasonable possibility that this situation could have resulted in an accident with significant consequence on his life or health at some point in the future. Having considered the totality of the evidence before me, I find that such occurrence was reasonably foreseeable. In short, I conclude that, on the facts of this case, requiring Mr. Wilkins to perform this activity could reasonably be expected to cause him substantial harm and, therefore, constituted a serious threat to his life or health.

[56] Finally, with respect to the issue of whether the threat to his life or health existed before the hazard or condition can be corrected or the activity altered, suffice it to say that there is no evidence that the employer was prepared to provide Mr. Wilkins with the appropriate and mandatory instructions and training on the day of the work refusal or, for that matter, in the near future. For this reason, it is clear that the serious threat to Mr. Wilkins’ life or health existed before the hazardous activity can be altered, which would have required the provision by the employer of adequate training and instructions. The conditions to conclude to the existence of a danger are therefore satisfied.

[57] In reaching this conclusion, I have been mindful of all the evidence provided by the appellant, including, with the previously noted reservation, the letters/statements by present employees of the appellant whose personal opinions obviously differ from that of Mr.Wilkins and are aligned with the position taken by the appellant. Those opinions however only reflect the comfort and competence of employees who have had occasion to acquire such in effectuating the task that Mr. Wilkins refused to execute, and thus do not attest to what the position or opinion of an individual deprived of the required training or experience would or should be vis-à-vis the hazards, potential or real, of such a new task. Having come to the above conclusion noted above, it thus obviously flows that my opinion is that the Ministerial Delegate properly found that the situation she was investigating regarding the refusal to work by Mr.Wilkins presented a “danger” within the meaning of the Code.

Decision

[58] Considering all of the above, the appeal is dismissed and the direction issued by the Ministerial Delegate on May 15, 2015, is confirmed.

Jean-Pierre Aubre

Appeals Officer

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