2017 OHSTC 2

Reasons

[1] This decision concerns an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) of a direction issued to Arva Flour Mills Limited by Ms Michelle Sterling, an Official Delegated by the Minister of Labour (Ministerial Delegate) on May 2, 2016.

Background

[2] Arva Flour Mills Limited (the Mill) exists for the “general advantage of Canada” pursuant to the declaration set out in subsection 55(1.1) of the Canada Grain Act. As a result, in accordance with subsection 2(h) of the Canada Labour Code, the Mill’s operations are part of the federal jurisdiction and are subject to Part II of the Code.

[3] The work place is comprised of a retail store area and a milling area that are separated by swinging doors. The small retail area has shelving stocked with grain products produced by the milling facility and this area is operated independently and is not the subject of this appeal. The Mill began operations in 1819 and the current milling equipment was installed in 1903. The Mill is operated by its proprietor Mr Michael Matthews and two employees, Mr Jan Tadek Lesniak, an experienced miller and Mr Dustin Blackall, an apprentice miller. Over the past 15 years, Mr Matthews has focused primarily on the business aspects of the milling facility and the miller, Mr Lesniak, taught him the operation of the milling equipment in the 1990’s. During the period from January 1, 2015, to May 2, 2016, Mr Lesniak and Mr Blackall performed the milling functions.

[4] The Mill produces several varieties of flour: unbleached hard flour, whole wheat hard, white soft, whole spelt and white spelt. The main floor milling area contains five roller mills, each consisting of a set of front and back rolls. There are 10 exposed and readily reachable belts from floor level that run upward approximately 18 inches then into the machine, they ride on pulleys that each drives a set of rolls. These belts go through the main floor of the milling facility and travel through a total of 18 main pulleys that are exposed but not readily reachable which drive the roller mills. The belts situated at the end of both banks of mills are guarded. The belts in the interior mills are not guarded. There are also 16 low-tension belts above the roller mills that are exposed but not readily reachable. A walkway is situated between the belts and the cupboard adjacent to the wall. The narrowest portion of the walkway is 139.7 centimeters (4 feet 7 inches).

[5] The Ministerial Delegate determined that a proactive inspection was required of this work place because the employer had not responded to a previous request made by another officer regarding hazardous occurrence reporting which dated back to April 2015. On April 14, 2016, accompanied by another officer, she attended the work place for the purposes of conducting an inspection. The Ministerial Delegate testified that during that meeting, Mr Matthews stated to her that the milling facility was dangerous but she qualified that by saying that Mr Matthews did not know what the Code definition of danger was.

[6] A physical inspection of the work place ensued by the Ministerial Delegate and what follows, which has been excerpted from her report, is a summary of the information gathered as a result of the discussion with Mr Matthews and the inspection concerning the Mill.

a) Arva Flour Mill is Canada’s oldest continuous operating flour mill.
b) The mill was first established in 1819 and the equipment that is being used today is from the early 1900’s.
c) The same process for milling was used in 1903 continues to this day.
d) The current owner is the fourth generation family member to own the mill.
e) The mill is a gravity mill meaning that it is an up and down process. There are 3 floors and a basement.
f) There are 5 roller mills that are used in the processing of the grain to get the end product.
g) The first roller mill has ridged rolls and each additional mill has rollers that are adjusted to get the end product.
h) The mill power switch is in the basement and there is one motor for all equipment in the mill.
i) The product (hard wheat, soft wheat or spelt) goes from the first mill, down and up through sifters and then depending on the product, will then be transported to the next roller mill until it has gone through up to 5 roller mills.
j) When the product reaches the roller mill the operator is required to adjust dials on the side of the roller mill by hand. These dials are similar to a bolt with a lock and a nut.
k) The operator moves the dial to adjust the rollers. This is done by the operator listening and feeling the vibration of the mill. The operator also physically feels the product by opening the roller mill door, sticking his hand in the roller mill and touching the product.
l) These tasks are all done when the mill is operating and there are moving parts and belts located on the roller mill, beside the roller mill, and above the roller mill.
m) There are always at least (2) two mill operators in the mill during its operation. The employer advised that is because the nature of the work and the danger involved.
n) The owner is a mill operator and he has one (1) employee who is a mill operator (30 years employed) and an apprentice mill operator.

[7] Upon entering the milling area from the store area, the Ministerial Delegate stated in her report that she observed numerous rotating parts and belts that were unguarded on all of the milling equipment. The milling process involves preparing the wheat or spelt for milling, including cleaning it and moistening it, as required. On April 14, 2016, the date of the Ministerial Delegate’s inspection, the milling equipment was engaged by one power switch that was situated in the basement. Once the milling equipment is activated, the miller pulls a lever on each of the five mills to commence the flow of the product into the rolls.

[8] The Ministerial Delegate made reference to the Employment and Social Development Canada (ESDC) policy document that, in her opinion, had a major influence in her determination that a danger existed on May 2, 2016.

[9] On May 2, 2016, the Ministerial Delegate issued the following direction to Arva Flour Mills Limited:

IN THE MATTER OF THE CANADA LABOUR CODE
PART II – OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 142(2)(a) AND (b)

On April 14, 2016, the undersigned official delegated by the Minister of Labour conducted an inspection in the work place operated by Arva Flour Mills Limited, being an employer subject to the Canada Labour Code, Part II, at 2042 Elgin Street, Arva, Ontario, N0M 1C0, the said work place being sometimes known as Arva Flour Mill.

The said official delegated by the Minister of Labour considers that the performance of an activity constitutes a danger:

While in operation, working in the mill is a danger because the roller mill contains numerous moving and rotating parts that do not have guards in place to protect the employees. Due to the work process involved, the operators of the mill must be in proximity to the moving belts and rollers during the milling process including testing the products by inserting their hands into the roller mill while it is operating.

Paragraph 125.(1)(t) – Canada Labour Code
Section 13.13 – Canada Occupational Health and Safety Regulations

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to protect any person from the danger immediately.

Your are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, not to use or operate the machine, in respect of which the notice of danger no. H0764 has been affixed pursuant to subsection 145(3), until this direction has been complied with.

Issued at London, this 2nd day of May, 2016

[signed]

Michelle Sterling
Official Delegated by the Minister of Labour
Senior Investigator
Id. No.: ON2637
National Toll Free: 1-800-641-4049
www.labour.gc.ca / www.travail.gc.ca

To:       Arva Flour Mills Limited
2042 Elgin Street
Arva, Ontario
N0M 1C0

[10] The appellant, Arva Flour Mills Limited, made an application for a stay of the direction on May 2, 2016, a teleconference to hear the application took place on May 5, 2016. On May 10, 2016, a letter was sent to the appellant indicating that the application for a stay of the direction was granted subject to certain conditions. I also specified that the reasons in support of my order would be rendered in the final decision on the merits. Accordingly, the reasons for granting the stay will be set out below.

[11] On May 26, 2016, Ms Szilassy filed a request to grant party status to Mr Matthews. Ms Szilassy also requested in the same correspondence that in the event the danger direction is upheld at the appeal, the direction ought to be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Mr Matthews’ rights to pursue the gaining of a livelihood as guaranteed by section 6(2)(b) of the Charter and to life, liberty and security of the person and the right not to be provided thereof except in accordance with the principles of fundamental justice under section 7 of the Charter are infringed by the direction.

[12] I ruled on Ms Szilassy’s request on May 26, 2016, and I concluded that, in accordance with my authority under the Code under 146.2(g), Mr Matthews demonstrated that he has substantially the same interests as the appellant (namely, Arva Flour Mills Limited) in this proceeding and could be affected by the decision at the conclusion of my inquiry. I thereby granted the request and made Mr Matthews a party to the proceedings and he was granted standing as a party with full participatory rights.

[13] The hearing was held in London on June 1, 2016, and continued on July 13, 2016, I also conducted a view of the area of the work place subject to the appeal on each of those dates. During those views, I was in the presence of Mr Matthews and Ms Szilassy and I observed the general layout of the milling facility and the configuration of the machinery, during the later visit, I took measurements and requested that the appellants provide me with photographs of the area under review and a copy of the milling log for the period between January 1, 2015, and April 14, 2016. As well, during the later view, on July 13^th, I observed Mr Matthews simulate tasks with the machinery related to the milling process.

[14] At the outset of the hearing on June 1, 2016, I asked Ms Szilassy about the constitutional issue that she raised in her correspondence of May 26, 2016. I confirmed with her that, in accordance with section 57 of the Federal Court Act, notices were served to the Attorney General of Canada and the attorney general of each province and territory. I ruled that this issue will be set aside until the decision of the danger issue is rendered and therefore the constitutional issue would be revisited at that time.

Reasons for granting the stay application

[15] The authority of an appeals officer to grant a stay is derived from subsection 146(2) of the Code, which reads as follows:

Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction

[16] In exercising their discretion under subsection 146(2), appeals officers apply the following three part test. The elements of this test are as follows:

1) The applicant must satisfy the appeals officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim.
2) The applicant must demonstrate that he, she or it would suffer significant harm if the direction is not stayed.
3) The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

Is the question to be tried serious as opposed to frivolous or vexatious?

[17] The applicant submits that there is an insufficient factual foundation on which to base the direction issued by Ministerial Delegate Sterling.

[18] The applicant argues that the direction has put the Mill, an undertaking that has been declared to exist “for the general advantage of Canada” out of business. The Mill has been in existence since 1819. The direction prohibits anyone from operating the milling equipment, including the proprietor, Mr Matthews.

[19] The applicant submits that considering the unique history of this enterprise, the circumstances given rise to the direction and the consequences of the direction, this appeal raises serious issues to be tried that are neither vexatious of frivolous.

[20] I agree with the applicant and consider that the issue of determining whether a danger existed for the employees operating the milling facility is a serious question to be tried.

[21] I therefore conclude that the applicant has satisfied the first element of the test.

Would the applicant suffer significant harm if the direction is not stayed?

[22] The applicant submits that as a result of the direction, Mr Matthews has been deprived of the ability to operate the equipment himself and to generate a revenue from doing so, which infringes on his rights to pursue the gaining of a livelihood under paragraph 6(2)(b) and to life, liberty, and security of the person under section 7 of the Canadian Charter of Rights and Freedom.

[23] The applicant contends that the Mill cannot generate any income without operating the flourmill equipment. The Mill operates a retail dry goods shop where the flour that is milled on site using the vintage equipment is sold. Compliance with the direction would therefore render the entire undertaking out of business that would result in the severance of employment of the millers as well as the employees working in the retail store.

[24] Additionally, the applicant claims that by virtue of the inevitable publicity that will arise from the cessation of the Mill’s historical enterprise, it will sustain serious and irreparable harm to its reputation and to its brand.

[25] I am convinced that the applicant would suffer significant harm by having to comply with the direction for the reasons that follow.

[26] The direction issued by the Ministerial Delegate not only requires the employer to take immediate measures to protect any person from the identified danger as per paragraph 145(2)(a) of the Code but also that the milling equipment not be used or operated by anyone under paragraph 145(2)(b). In addition, Ministerial Delegate Sterling used her discretionary power provided by subsection 145(3) of the Code to affix a notice of danger to the door going into the milling area. As a result, the direction prevents anyone from operating the milling equipment at the Mill.

[27] The effect of the direction is thus the cessation of all flour production at the Mill. As explained to me by the applicant, an integral part of the Mill operation is the selling of the flour produced on-site using vintage equipment through its retail store. The prohibition to use the milling equipment would hinder the production of flour to sell, which in turn, would cause substantial financial harm to the employer. Considering that the main product sold at the applicant’s retail store is the flour milled by the ancient equipment, I find that compliance with the direction could seriously impact the employer’s ability to generate revenue and could put the entire operation out of business.

[28] In my opinion, the prospect that compliance with the direction could put the applicant out of business is enough to satisfy the second element of the test.

What measures would be put in place to protect the health and safety of employees or any person granted access to the work place should the stay be granted?

[29] The applicant submits that it will implement the following measures to protect the health and safety of employees pending the disposition of the appeal.

[30] First, Mr Matthews, the proprietor, and not an employee, will personally perform all the milling functions. No employee will be present in the milling area during the milling process. The employees of the Mill will continue to perform the packing and bagging of the flour at times when the roller mills are not in operation. Second, a scoop will be used to collect the flour when checking for the quality of the flour during the milling process to eliminate the hazard identified in the direction. Third, the roller mills will be cordon off from the rest of the premises to ensure employee’s health and safety.

[31] I am satisfied that the applicant has met the third criterion and consider that the proposed measures will serve to protect the employees’ health in safety pending resolution of this appeal and I am prepared to grant a stay that would be conditional to the immediate implementation of these measures. In addition, considering the nature of the direction under appeal, I felt compelled to add one more condition to the granting of this stay to require that the hearing of this appeal be held on an expedited basis in order to ensure a speedy resolution of this case.

[32] Therefore, as stated in my letter of May 10, 2016, the stay of the direction issued by Ministerial Delegate Michelle Sterling on May 2, 2016, is hereby granted. The granting of the stay is conditional to the immediate implementation of the following measures:

1) The hearing on the merits of the appeal shall take place on either the week of the 23^rd to the 27^th of May or the week of the 30^th of May to June 3^rd.
2) Mr Matthews, the proprietor, and not an employee, will personally perform all the milling functions. No employee should be present in the milling area, in proximity to moving belts and rollers during the milling process.
3) Mr Matthews will cordon off the roller mills from the rest of the premises.
4) The flour packing and bagging functions shall only be performed when the rolling is not in operation.

Merits of the case

Testimony of the Ministerial Delegate

[33] What follows is a summary of additional facts provided by the Ministerial Delegate during her testimony at the hearing.

[34] The Ministerial Delegate did not physically observe the milling facility in operation during the time she attended the work place. The online video she watched showed at least one roller mill in operation with its belt turning and that was the extent of what she observed while the milling facility was in operation. The area that constituted a danger as stated in her direction is the entire milling area. In her opinion, once the belts are moving the circumstances change from being a hazardous area to a danger, specifically, it is the process that the miller does to mill the product. She believes that contact with the moving parts or belts constitute a serious threat to health and safety in that significant injury could occur. She based her opinion on the demonstration provided by Mr Matthews while the milling facility was not operational. The Ministerial Delegate did not want to put herself in a situation that she perceived to be a danger because she is a federally regulated employee bound by the Code and that is the reason for not observing the employees conducting the milling process while in operation.

[35] The hazard that would create the danger in the Ministerial Delegate’s opinion refers to an employee or a person tripping or getting ones piece of clothing near a belt or rotating moving part and making contact with them. This circumstance can cause an employee or a person to be caught up in those moving and rotating parts. It could be an accident, meaning one could trip or by getting clothing caught by working close to it and this could also apply to the parts that are moving and rotating inside the mills that are covered. The work process stated in her direction refers to a phone conversation with Mr Matthews on April 15, 2016, where he described it in detail, from beginning to end.

[36] The work process and hazard is presented when placing hands inside the roller mill to grab some product and feel it, according to the information provided by Mr Matthews and not by observation while in operation, was that the two milling rollers inside each unit could possibly make contact with the hand(s) while the rollers are moving. In the Ministerial Delegate’s experience, as a health and safety officer, she has seen and investigated accidents where employees’ arms, all the way up, have been caught up in rollers, not in a flour mill but other places of business. In this case the serious injury could involve a hand being caught into the pinch point based on the description provided to her by Mr Matthews.

[37] Another work process the Ministerial Delegate identified involves the adjustment of dials which is based on the product being made at the time; these dials are located high and to the sides of each roller mill so an employee must reach while parts are moving to the left and right. As well, while the mills are in operation, there are exposed moving belts throughout that line. The Ministerial Delegate acknowledged during cross examination that some rotating and moving parts move so slowly that a touch would not cause a physical effect that would result in an injury but one could still get caught up into them under certain circumstances.

[38] According to the Ministerial Delegate, someone just walking in the milling area is exposed to the danger and it does not necessarily have to be a person working, just standing and watching in the milling area while in operation would be a dangerous situation. The rationale provided is that because all the circumstances that lead to a danger cannot be removed even standing without distraction or not falling in the milling area is a danger and the entire area is a danger zone due to the exposure to the equipment.

[39] In regards to the imminent nature of the circumstances alleged to be a danger, the Ministerial Delegate opined that imminent meant that it could happen anytime, that something does not have to have happened in the past to guarantee that it would not happen in the future. Therefore, she must note that, at the time, there could be exposure of an employee or a person in that milling area to those moving and rotating parts that could cause serious harm and injury to that person in reference to departmental guideline on the definition of danger.

[40] In regards to the Ministerial Delegate quoting section 13.13 of the Canada Occupational Health and Safety Regulations (the Regulations), she testified that this was included in the direction because she felt that it is was important for Mr Matthews to know that guarding the belts and moving and rotating parts could help him comply with the direction. The Ministerial Delegate’s position is that if the moving and rotating parts were guarded she would not believe it to be a danger because they are guarded and the hazard is not there and the inclusion of the regulation was to emphasize that.

[41] The Ministerial Delegate’s conclusion that a danger existed was influenced by her initial meeting with Mr Matthews on April 14, 2016. In the first five minutes of her meeting, Mr Matthews indicated that his work place was “extremely dangerous”, and therefore even prior to entering the milling area this statement had an impact. Since she is a regulator and not a miller, she considered Mr Matthews an expert in milling and relying on experts is something she does in determinations of danger. Having the owner of the Mill state his place is dangerous had a bearing on her determination that a danger existed even though she knew Mr Matthews was not referring to the term danger as defined in the Code.

[42] Over the next several days following her visit on April 14, 2016, she had consultations with people inside her office and department because of the high profile nature of the Mill in accordance with departmental procedures. Although the wording of the direction changed from her first version as a result of the departmental consultation process, the Ministerial Delegate testified that she was never influenced in her decision concerning the danger determination and her reasons for it. The danger circumstances were never assessed from an occupational health and safety perspective only in terms of the Code and internal policies regarding danger.

Appellants’ evidence and submissions

[43] The appellants’ case included the testimony of three witnesses:

• Mr Michael Matthews
• Mr Dustin Blackall
• Mr Jan Tadek Lesniak

[44] Mr Matthews testified about his interaction with the Ministerial Delegate beginning on April 14, 2016, up to the issuance of the direction on May 2, 2016. He testified that he was not familiar with the definition of “danger” under the Code. He stated that he did not recall what was said precisely to the Ministerial Delegate on April 14, 2016. He recalled advising the Ministerial Delegate that there are moving parts on all four floors of the Mill. He did not appreciate the implication that somehow the Ministerial Delegate would infer that he was agreeing with her opinion that the milling posed an imminent or serious threat to the lives or the health of Mr Lesniak and Mr Blackall or to himself; he completely disagreed with the Ministerial Delegate’s opinion.

[45] It is Mr Matthews’ evidence that if he shared the Ministerial Delegate’s view, he would not continue to place himself at risk by milling on his own, which he has done exclusively since May 9, 2016. Furthermore, he states that based on the fact he has lived and worked at the Mill his entire life, it is his opinion that it does not now, nor has it ever posed a danger to himself or to others who work in the milling facility. 

[46] Mr Matthews explained the complete work process from start to finish on the witness stand and in person in front of the non-operational equipment during the site views. He testified about the non-written policies and procedures he administered prior to the direction being issued on May 2, 2016.

[47] Mr Lesniak testified that he has been employed at the Mill for 30 years, from May 1986 until May 2, 2016. Prior to immigrating to Canada, he obtained his diploma as a flour-milling technologist in Poland in 1969 and then went on to work, as miller in Poland in what was at that time the largest flour mill in Europe. He has worked his entire life as a miller and he has significant experience with milling equipment practices, specifically with those used at the Mill. He testified that milling in a historic mill like the Arva Flour Mill involves the use of all of ones senses and includes common sense; milling involves a great deal of training and on-the-job experience that takes years of practice.

[48] In regards to Mr Blackall’s work experience, Mr Lesniak’s evidence is that he began his learning process by observing Mr Lesniak operate the milling equipment. He stated that Mr Blackall learned to appreciate and respect the old equipment, first by assisting in the bagging of the product. Gradually, Mr Blackall acquired the skill and comfort level to safely and effectively operate the roller mills. Mr Lesniak stated that for the last five years, he and Mr Blackall have milled together.

[49] In his opinion, Mr Lesniak testified that he never felt that the moving belts and parts of the milling facility posed an imminent or serious threat to his life or health or that of others. Had he perceived that such a danger existed he would have refused to work or refused to allow others near the equipment. In all the years he worked at the Mill he was not aware of a single accident requiring any level of medical attention.

[50] Mr Lesniak described a step by step account of a typical day in the milling facility. He explained the work that he performed near the moving belts and rotating and moving parts. He provided evidence on his attire and work practices and preventative measures relating to his work and his safety and his colleagues in the milling facility.

[51] Mr Blackall testified that he began his employment at the Mill over six years ago in the retail store as a clerk where he gained an interest in the antiquated process through which flour was produced. His duties expanded to include time spent cleaning the milling facility when it was not operating which gave him greater exposure to the old equipment. He testified that Mr Matthews was considering hiring and training another miller and he expressed interest in learning to run the milling facility, and he developed his skills required to be an effective miller. His training began by shadowing Mr Lesniak throughout the milling facility, as well as discussions on the theory of flour milling. Through observing Mr Lesniak’s work, as well as receiving verbal instructions on the milling procedure he began to get a greater understanding of how to effectively manage all of the equipment involved in the milling procedure. Specific areas were pointed out to him, which could be hazardous, and having the operation of the machinery taught in a fashion that would limit or eliminate his exposure to those areas. As such, he was able to develop the skills to work safely in the flour mill.

[52] After a significant number of shifts spent learning in that fashion, Mr Blackall testified that Mr Lesniak assessed his knowledge to be sufficient enough that he could begin to become involved in the operation of the machinery himself. For some time, any milling he did was done under the direct supervision of Mr Lesniak. Mr Lesniak would advise him on the things he was doing incorrectly and the necessary adjustments would be made in the areas where he had not gained enough experience to do himself. Mr Blackall stated he then enrolled and completed a correspondence diploma program in flour milling offered by the International Association of Operative Millers. The program allowed him to continue his hands on training at the Mill while developing more in depth knowledge of the theory of flour milling. Although the courses focussed mostly on contemporary milling equipment, rather than the antiquated equipment used in the milling facility, it still allowed him to gain a better understanding of the gradual reduction process which is employed in the milling facility, as well as mill mechanics, grain handling and storage and facility maintenance.

[53] It is Mr Blackall’s position that after completing the correspondence program, as well as putting in numerous hours under the supervision of Mr Lesniak, that his knowledge and skills were developed to a point where he could confidently an completely operate the milling equipment independently. His evidence is that he never felt that the milling facility posed an imminent or serious risk to his health or safety. Rather, through thorough oral instruction and extensive visual learning, he is confident that he is able to operate within the milling facility in a manner, which mitigates any risk presented by any hazards that may be present. It is his belief that while there may be hazards present in the milling process, to a well-trained operator, those hazards do not pose an imminent or serious risk to his health or safety and therefore do not constitute a danger.

[54] Mr Blackall provided evidence concerning his typical daily activity in the milling facility while it is in operation. He described the specific tasks that could require him to possibly make full contact with moving or rotating parts and he demonstrated an awareness of the hazard and prevention measures involved to mitigate those hazards. Mr Blackall does not perform any repairs or maintenance of the equipment.

[55] Mr Matthews is the current proprietor and a party to this appeal. The Mill has been in Mr Matthews’ family for four generations since 1917 and he took over the management of the Mill in 2005. Over the last 15 years, Mr Matthews has not regularly engaged in milling, but rather has focused his energies on the business aspects of the Mill.

[56] In accordance with the terms of the stay, since May 10, 2016, Mr Matthews has been the sole operator of the milling equipment. During the period from January 1, 2015, to May 2, 2016, the two millers, Mr Lesniak and Mr Blackall, performed the milling functions in the milling facility.

[57] The appellants submitted that, until April 2016, the Mill had limited contact with the Labour Program. In fact, until Mr Matthews was advised otherwise by the Ministerial Delegate on April 14, 2016, Mr Matthews was under the impression that the Mill was not required to comply with the provisions of the Code because of its age and historical standing.

[58] It is submitted by the appellants that to Mr Matthews’ knowledge, and that of Mr Lesniak and Mr Blackall, the Mill has never had a work place injury requiring medical attention.

[59] Referring to the electronic site analysis record kept by the Labour Program, the appellants submitted that it indicates that on or about January 29, 1999, Health and Safety Officer (HSO) R. Fortner completed and closed a file in relation to a general inspection of the Mill which, presumably, had been conducted sometime in 1998. The electronic Labour Affairs Officer Assignment Narrative Report pertaining to this inspection, produced on September 16, 2016, indicates that deficiencies were noted during the inspection, the majority of which were related to the Fire Code. Middlesex County Fire Inspector S. Guay accompanied HSO Fortner during the inspection. The electronic site analysis record indicates that an Assurance of Voluntary Compliance (AVC) citing four (4) deficiencies was issued. The screen shots indicate these deficiencies related to: i) a guardrail; ii) fire protection equipment; iii) emergency lighting; and iv) a cover for a hopper.

[60] Again referring to the electronic analysis record kept by the Labour Program, the appellants submit that HSO D. Kennedy issued an AVC to the Mill when it did not submit an annual hazardous occurrence report to ESDC for 2013. The record indicates that no further follow up was done and the file was closed effective April 29, 2015.

[61] On April 14, 2016, the Ministerial Delegate attended the Mill. In regards to the conversations with the Ministerial Delegate, the appellants submit that Mr Matthews did not recall precisely what he said to her on April 14, 2016, he acknowledged that the word dangerous was used in their discussion. Mr Matthews testified that in his way of thinking, many activities have the potential to be “dangerous”, meaning that if they are not performed with care, injury may occur (e.g. driving, flying, walking down the street). Mr Matthews confirmed the Ministerial Delegate’s evidence that, at that time, he was not familiar with the definition of “danger’ under the Code. Now that he is aware of the definition, Mr Matthews strongly disagrees that the activity of milling poses an imminent or serious threat to the lives or health of the millers, Mr Lesniak, Mr Blackall and now himself, which he has done since May 10, 2016, if he felt his life or health were at risk.

[62] The appellants point that the Ministerial Delegate’s evidence was that on April 14, 2016, prior to leaving the Mill, she had decided that being in the milling area, while in operation, constitutes a danger. The Ministerial Delegate noted in her Assignment Narrative Report:

[…] All moving and rotating parts that constitute a hazard (source of harm or risk) to an employee are required to be guarded as per COHSR 13.13 and the employees working in the mill during the operation of the mill, would be exposed to an imminent or serious threat to their life or health as the moving and rotating parts were unguarded […]

[63] Furthermore, the Ministerial Delegate testified that she did not share her “danger” decision with Mr Matthews on April 14, 2016, as she knew that she could not issue the direction without Director General approval. She noted in her Assignment Narrative Report:

I was aware that the tagging out of the milling equipment as a danger would immediately stop all four production in the mill and because I was aware that this situation would be a high profile case within the community, I contacted my manager and advised him of the situation. I initiated our internal policy for high profile cases which requires Director General approval for all enforcement actions including the issuing of directions.

[64] It is further submitted that the Ministerial Delegate testified that she asked Mr Matthews when he planned to run the milling facility again. Mr Matthews responded April 19, 2016. The Ministerial Delegate then left the Mill, without issuing any direction or Assurance of Voluntary Compliance in relation to the contraventions observed. The Ministerial Delegate then went home and completed a draft direction for approval that stated as follows:

It is a danger for an employee to operate the flour mill or to be in the location of the flour mill during its operation because the flour mill contains numerous moving and rotating parts that are unguarded.

[65] In addition, on April 15, 2016, the Ministerial Delegate contacted Mr Matthews via telephone and had him verbally explain the milling process to her. Over the next several days, the Ministerial Delegate engaged in numerous discussions with several individuals within the ESDC regarding her proposed course of action regarding the milling facility which in her testimony the Ministerial Delegate stated, “did not influence me, not one bit.” The Ministerial Delegate’s Assignment Narrative Report states that she continued to represent to Mr Matthews that no decision had been made, despite having decided that the milling facility was a danger:

During the consultation process, I spoke with Mr. Matthews via telephone on numerous occasions to update him on the status of the investigation. I advised Mr. Matthews of my concerns for his employees and the condition of the mill but that I was awaiting further consultation with management prior to reaching a decision […]

[66] On or about April 19, 2016, when the milling was scheduled to resume, it is submitted that Mr Matthews telephoned the Ministerial Delegate to ask whether the milling facility could operate. The Ministerial Delegate responded, “Mike, listen to me carefully. You do not have anything in writing. Do you hear what I am saying?”

[67] Accordingly, during the period from April 19, 2016 to May 2, 2016, the millers operated the milling facility in the normal course. On May 2, 2016, the Ministerial Delegate once again attended at the Mill, having obtained Director General approval of the direction. The Ministerial Delegate served Mr Matthews with the cover letter and posted the direction in the retail store on the swinging doors leading into the milling area and she directed Mr Matthews to affix a danger tag number H0764 to the power switch of the milling facility.

[68] The appellants submitted that the direction does not identify a hazard, condition or activity that constitutes a danger under the Code, and that there are no objective basis for the finding of danger or the issuance of the direction.

[69] The appellants provided an overview of the changes to the definition of danger, the new definition came into force on October 31, 2014, along with the other amendments to the Code contained in Bill C-4, Economic Action Plan 2013 Act, No. 2. It was pointed out that there were no released decisions interpreting this new definition at that time.

[70] The appellants proceeded to review the concept of “imminent danger” that came from the pre-1984 version of the Code, when “danger” was not defined by statute; rather, the provisions of the Code authorizing a direction to be issued in the event of a finding of danger made a reference to “imminent danger”, which was also not defined in the Code.

[71] It is the appellants’ position that, under the Code, the word danger must be given a narrow interpretation, and objective criteria must be used to determine whether or not danger exists. It is submitted that the Ministerial Delegate did not properly interpret danger and did not use objective criteria to assess the Mill. She did not:

i) view the operation of the milling facility;
ii) speak with either of the millers who had been milling exclusively during the relevant period of time;
iii)take any measurements; or,
iv) take any photographs.

[72] It is argued that, rather, in deciding the activity of milling was a danger, the Ministerial Delegate focused on the guarding contraventions of the Code. She identified these regulatory infractions under the Regulations and relied on those infractions in the direction. Specifically, the direction references paragraph 125(1)(t) of the Code and section 13.13 of the Regulations.

[73] Furthermore, it is argued that the presence of regulatory contraventions cannot, in and of itself, constitute a finding of danger. A dangerous situation is not created as soon as an employer contravenes an occupational health and safety statute, regulations or regulatory standard on equipment. Rather, a finding of danger requires an independent analysis that supports that conclusion.

[74] The appellants submitted that the objective basis required to support a finding of danger under the Code was not present at the time of the Ministerial Delegate’s inspection. There was no objective basis for determining there was a danger – no accident, employee complaint/concern or other incident were ever reported. In effect, the pristine safety record demonstrates that the small numbers of well-trained, experienced operators possesses the skills and comfort level of safety and effectively operate the milling facility.

[75] The Ministerial Delegate, it is submitted, failed to consider that the milling equipment was designed so that the belts that are in proximity to the millers are moving away from the pinch points. Thus, while a miller could reasonably come into contact with a moving belt, that contact could not result in him being caught in a pinch point. Instead, at worst, if the moving belt happened to make contact directly with the miller’s skin, the likely result would be a rope type burn.

[76] In regards to the manner millers collect samples as being a potential source of danger, as was raised in the direction by the Ministerial Delegate, it is submitted that effective May 10, 2016, and as observed by the appeals officer, samples are now drawn using a scoop thus correcting the potential hazard associated with a miller’s hands being in proximity to moving rolls. At the time of the Ministerial Delegate’s inspection, when collecting the high pre-roll gravity sample, the fingers of the miller’s cupped hands are facing away from the pinch point and the bottom of their cupped hands are more than half a foot above the two rollers that are turning into each other. When collecting the lower post-roll sample, the miller’s hands are at least 7 to 10 inches below the two rollers, which are turning away from each other.

[77] The appellants argued that the Ministerial Delegate failed to apply the definition of danger as found in the Code, and instead considered the more common meaning of the term dangerous and hypothetical possibilities. Furthermore, at the time the direction was issued by the Ministerial Delegate, she had not observed the milling facility in operation, nor did she speak with the two millers, one of whom had been performing milling at the Mill for 30 years. Consequently, she had no objective basis to believe that the milling facility posed an imminent risk to workers, nor did she have any basis to assess the threat to life or health of workers. She relied on her subjective belief that harm could occur at any time, positing a hypothetical danger.

[78] Likewise, it is submitted by the appellants, that the Ministerial Delegate did not immediately cease operations at the milling facility, and in fact allowed the milling to resume before issuing her direction which is not consistent with a finding of immediate and serious danger, if that was the case, immediate intervention would have been required.

[79] Finally, the appellants submitted that this is a de novo hearing, therefore the appeals officer must assure himself that there is a “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”. It is not disputed that regulatory contraventions, perhaps amounting to hazards, are present at the Mill. However, it is respectfully submitted that the presence of these factors do not surpass the thresholds of immediacy or seriousness required for a finding of danger under the Code.

Relief sought

[80] The appellants’ request that the direction under paragraph 145(2)(a) of the Code, dated May 2, 2016, be rescinded.

[81] Should the regulatory contravention noted by the Ministerial Delegate, being the guarding provisions under section 13.13 of the Regulations, be found to be a hazard, a direction under subsection 145(1) of the Code would be appropriate.

[82] Due to the age and structure of the Mill, it is anticipated that, if required, the retrofitting of guarding will be an enormously technically challenging and a costly exercise. In order for the appellant(s) to analyze its options and secure funding, it is submitted that an appropriate amount of time to allow for this exercise would be 12 months.

Analysis

[83] The issue that needs to be determined to resolve this appeal is whether the direction issued by Ministerial Delegate Sterling identifying a danger for the operators of the Mill is well founded. To decide whether to vary, confirm or rescind the direction, I will need to ascertain whether a danger exists in the performance of the activity.

[84] Section 122 of the Code defines danger as follows:

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, condition can be corrected or the activity altered.

[85] This new definition of danger came into force in October, 31 2014, along with other amendments to the Code contained in the Economic Action Plan, 2013 Act, and No.2. The first decision of an appeals officer interpreting this new definition has been rendered in Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson). In that decision, Appeals Officer Strahlendorf stated the following in regards to the new definition of danger:

(199) To simplify matters, the questions to be asked whether there is a “danger” are as follows:

1) What is the alleged hazard, condition or activity?
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?

[86] I will proceed to examine each question of the three-fold test.

What is the alleged hazard, condition or activity?

[87] In her direction to the employer, the Ministerial Delegate identified the activity of working in the milling area of the facility itself as being the danger. In her view, the milling equipment contains numerous unguarded moving and rotating parts which expose the employees to an imminent or serious threat to their life or health. In addition, the Ministerial Delegate raised a specific concern regarding one aspect of the work process that requires the operators of the milling facility to insert their hands into the roller mill while it is in operation.

[88] In the analysis that follows, I will ascertain whether the employees’ exposure to unguarded moving and rotating parts in the process of milling flour poses an imminent or serious threat to their life or health.

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?

[89] In the Ministerial Delegate’s opinion, an imminent threat refers to something that could happen at any time. She opined that an employee could, at any time, get caught up in the moving and rotating parts either by accidentally falling on the equipment or with their clothing.

[90] For the reasons that follow, I cannot accept the Ministerial Delegate’s interpretation of what constitutes an imminent threat and her conclusion with regard to the present case.

[91] An imminent threat was defined in the following way by the appeals officer in the Ketcheson decision:

(129) The New Shorter Oxford English Dictionary (1993) defines “imminent” in the following way: “of an event esp. danger or disaster: impending, soon to happen”. Thus, in my view, to say that something is “imminent” is to say two things. That something can happen or exist soon and that something has a high probability of happening or existing. One would not ordinarily say that something is “imminent” if it could happen soon but the probability of it happening is a mere possibility. But there is no connotation of the severity of harm. An imminent threat can be something that results in either a severe harm or a minor (but not trivial) harm. An employee should not have to do work where there is an imminent threat of either dying or cutting a finger. In the work place, an employee would view something as “imminent” if it can reasonably be expected to happen or exist in a matter of minutes or hours.

(205) An imminent threat is established when there is a reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours).  The degree of harm can range from minor (but not trivial) to severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person.

[92] I concur with this interpretation and find that in the particular circumstances of the case at bar, in order to conclude that the employees were exposed to an imminent threat, the evidence has to show that there was a reasonable possibility that the employees would get injured within a manner of minutes or hours on the day of the Ministerial Delegate’s inspection.

[93] In my opinion, there is nothing in the evidence to indicate that the threat to employees operating the milling equipment was on the point of happening on the day of the inspection. On the contrary, the evidence is to the effect that only a very small number of knowledgeable employees operate the milling equipment while following established processes and procedures in order to ensure their safety. There are only two millers working in the milling facility that both possess extensive experience and training in the safe handling of the ancient equipment. The two millers are made aware of the hazards that are associated with operating this type of equipment and are told that they should always position themselves directly in front of the rollers so as to avoid coming in contact with any moving parts.

[94] In addition, I find the Ministerial Delegate’s actions throughout her investigation to be inconsistent with her findings that there was an imminent threat to the life or health of the employees. Actually, although she testified that she was of the view, based on her inspection, that the threat to the employees’ health and safety was imminent; she waited more than two weeks to issue her direction. The employees were thus able to operate the milling facility without incident between April 19 and May 2, 2016, the day of the issuance of the direction.

[95] For these reasons, I cannot conclude that the employees were exposed to an imminent threat to their life or health.

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

[96] The appeals officer in Ketcheson described a serious threat as follows:

(130) A “serious threat” is one that is not necessarily imminent. The New Shorter Oxford English Dictionary defines the term “serious” to mean: “important, grave, having (potentially) important esp. undesired consequences; giving cause for concern; of significant degree or amount worthy of consideration”. In the ordinary usage of words, an employee would understand that a “serious threat” refers to the severity of harm. There is no time frame as to when the harm might occur…

(210) A serious threat is a reasonable expectation that the hazard, condition or activity will cause serious injury or illness at some time in the future (days, weeks, months, in some cases years). Something that is not likely within the next few minutes may be very likely if a longer time span is considered. The degree of harm is not minor; it is severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person

[97] Following that interpretation, to conclude to a serious threat, there has to be a reasonable possibility that the threat will materialize and will cause significant or severe injury or illness. To determine whether a serious threat to the life or health of the operators of the milling facility exist, there has to be a reasonable possibility that their exposure to the moving and rotating parts could cause severe or substantial injury or illness at some time in the future.

[98] For the reasons that follow, I do not believe that the operators of the milling facility were exposed to a serious threat to their life or health. 

[99] With respect, the Ministerial Delegate’s interpretation of the new concept of danger is flawed. A conclusion of danger must be based on more than a hypothetical threat. A serious threat requires an assessment of the probability that the threat will cause harm as well as the consequences of the harm, which have to be severe. The Ministerial Delegate issued her danger direction based on her conclusion that there was always a possibility for the employees to come in contact with the moving and rotating parts which could result in significant injury. In her opinion, the employees could trip and fall on the equipment at any point or could get caught in the rollers by wearing loose clothing while the milling facility is in operation. The employees could also suffer serious injuries by putting their hands in such close proximity to the rollers when collecting flour samples for testing.

[100] When questioned about her rationale for concluding that the employees could get seriously injured, she explained that in her view an employee could get directly in contact with the belts and the moving and rotating parts at any time. An employee could do a procedure that they would not normally do or could be distracted by hearing ones name being called out or by one not paying attention or one could trip or fall and all those things combined are hazards that reach a point of danger as opposed to just a hazard.

[101] In my view, these conclusions reached by the Ministerial Delegate are not based on any objective facts other than her own speculations as to what could occur to employees while the milling facility is in operation. In her investigation report and throughout her testimony, she did not raise any concrete facts to substantiate her conclusion that the employees are likely to get seriously injured by operating the vintage equipment.

[102] Given the de novo nature of the Part II appeals process, I had the benefit of receiving oral evidence of the operators of the milling facility and its owner who testified to key elements that were not considered by the Ministerial Delegate that I find extremely relevant in assessing the likelihood of serious injury to employees in this case. In addition to the evidence gathered at the hearing and, as previously mentioned, I made two separate site visits to the work place milling area to gain a better understanding of the facts surrounding this case.

[103] The evidence presented at the hearing as well as my visits to the work place milling area have led me to conclude that the Ministerial Delegate failed to consider relevant processes and procedures that are in place to mitigate the asserted hazards, i.e. employee getting caught in the machinery. Moreover, the Ministerial Delegate did not consider the extensive experience and training of the only two millers operating the milling facility.

[104] Based on their testimonies, I am satisfied that through their extensive training and on-the-job experience, the two millers have acquired the knowledge necessary to safely operate the ancient equipment. Strikingly, Mr Lesniak has been working at the Mill for over 30 years and has been around milling equipment for the majority of his life. And, on the other hand, we have Mr Blackall, who has been apprenticing under Mr Lesniak to operate the equipment for many years. At first, he was only able to do so under the direct supervision of Mr Lesniak but eventually gained enough knowledge and confidence to operate the equipment on his own.

[105] The employees thoroughly explained to me that the milling process requires them to rely on all of their senses: hearing to recognize noises which may indicate the milling equipment is not functioning properly; smell to indicate the presence of a heating bearing; touch to assess the consistency of the product; and, as with any activity muscle memory. If warranted, the miller adjusts the tension on the rolls to ensure that the flour being produced has the appropriate consistency. The cleaning, repair and maintenance of the milling equipment is performed while the milling facility is shut down. Mr Matthews is the one who normally performs repair work.

[106] Throughout their testimonies, the two millers have shown themselves to be very knowledgeable in the hazards involved in operating the very ancient milling equipment. They explained the measures they implement to avoid as much as possible any contact with the equipment. It was explained to me that prior to the start of the milling process, the practice is to ensure that no one is in the milling area and to do a check of the equipment that it is in good repair. The miller then situates himself directly in front of the roller mill and turns the two dials located at the top right-hand side of each mill, either moving the rolls closer together or farther apart, whichever is required. The initial set up can take anywhere from 5 to 20 minutes, depending on the amount of adjustment needed. Once the rolls are properly set, the miller’s presence is no longer required at the mills and the miller moves to the bagging area to pack flour.

[107] As a consequence of the hazards involved with this type equipment, there are strict unwritten procedures in place regarding the appropriate work attire when operating the milling facility. The millers must wear work boots and tight fitting clothes. They are also directed not to wear any jewellery or loose items on their person that could get caught in the rollers and belts.

[108] Additionally, one crucial element presented to me in evidence that should have been carefully weighed by the Ministerial Delegate in her investigation is the fact that the belts located on the different rollers, identified as the moving parts in her direction, are moving opposite from the pinch points thereby reducing the likelihood of an employee getting caught in them. As explained to me by the witnesses at the hearing, in the event that an employee’s skin would make contact with the moving belts, the most likely result would be rope type of burn.

[109] While no expert in this type of ancient milling equipment has testified on the hazards involved while it is in operation, I have given significant weight to the testimonies of Mr Matthews and the millers who have been working in the Mill for the majority of their lives. In that regard, the Federal court in Verville v. Canada (Service correctionnel), 2004 FC 767 has recognized the importance of the opinion of certain witnesses who have more experience than the appeals officer in the subject matter at issue:

(51) A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form the opinion […]

[110] Mr Matthews and his two employees, while acknowledging that there are some hazards associated with milling flour with the vintage equipment, have all expressed the view that they do not believe that they are likely to get seriously injured by being exposed to the rotating and moving parts.

[111] Furthermore, since the direction specifically identifies the process of collecting samples for testing as a possible source of danger, I personally requested, while on site, a demonstration of how this process is done. The roller mills are gravity fed, meaning that the flour flows from the floors above into the rolls. The roller mills contain two covered openings one above the other which can be opened. The upper door allows access to the product to flow into the milling rolls. The lower door is below the milling rolls, and allows access to the product once it has passed through the rolls. At the time of the inspection, the millers used their cupped hands to collect the flour.

[112] I was unable to conclude from what I have observed that there was a reasonable possibility that the employees could get seriously injured. In my view, and as submitted by the appellants, when collecting the flour, the miller’s hands are facing away from the pinch points and their cupped hands are at reasonable distance from the moving and rotating parts. The measurements I took during my visits to the milling facility show that the distance from the rolls to the location where the pre-roll sample is taken is approximately 18 to 20 centimeters (7.08 to 7.87 inches). The distance from the milling rolls to the location where the post-roll sample is taken is approximately 20 to 26 centimeters (7.87 to 10.23 inches).

[113] It should be noted that I was informed by the employer at the hearing that, since the issuance of the direction, the collecting of samples is now being done with the use of the scoop and no longer directly with the miller’s hands. Notwithstanding my conclusion above, I am pleased to know that the employer has taken additional steps to further enhance its employees’ safety.

[114] An additional element that I consider very relevant in considering the likelihood of serious injury to the employees is the fact that the milling facility does not operate for long hours on a daily basis. It only operates when required to fulfill contracts and customer demands. The milling log for the period between January 1, 2015 and April 14, 2016, indicates that the milling facility was operational an average of nine days per month, or approximately 42 hours per month, with each milling session lasting an average of approximately four hours.

[115] Finally, as the evidence has demonstrated, this work place differs from many others, as it is an historic artisanal mill. The evidence that I have received as well as my own observations have led me conclude that considering the small number of well-trained employees following long-established practice and procedures as well as the location and direction of the moving belts, it cannot be said that there is a reasonable expectation of severe or substantial injury to the employees in the process of milling flour.

[116] Based on all the above, I find that no danger existed for the employees at the Mill on the day of the Ministerial Delegate’s inspection.

[117] In addition to her conclusion of danger, the Ministerial Delegate also identified in her direction, a contravention of paragraph125 (1)(t) of the Code and section 13.13 of the Regulations. 

[118] The appellants have argued that the presence of a regulatory contravention cannot, in and of itself, constitute a finding of danger. In support of this argument, the appellants referred to the decision in Public Works and Government Services Canada and Indian Affairs and Northern Development Canada Decision No. OHSTC-10-001 in which the appeals officer stated the following:

(63)Subsection 145(2) reflects the concern of the legislator for the immediate protection of employees that might be exposed to danger while at work.

(64)This provision allows an HSO, upon finding such a danger, to either direct the employer to correct the hazard, condition or activity that constitutes the danger, to protect any person from it or to forbid access to the source of this danger.

(65)I find, however, that this section is not an adequate vehicle for an HSO to issue a direction to an employer because of a contravention to Part II of the Code.

[119] While I concur with the appellants’ assertion that a danger direction is generally not the appropriate vehicle for a contravention of the Code and its Regulations, I believe that there are certain circumstances within which a contravention to the Code may also constitute a danger. In the Ketcheson decision, the appeals officer was of the same view when he stated the following at paragraphs 115 and 213:

(115) the respondent referred to the employer’s breach of several sections of the Code as a basis of his work refusal. The contravention of a provision of the Code or of the Canada Occupational Health and Safety Regulations (the Regulations) is not the basis of a work refusal unless the contravention is of sufficiently high risk so as to constitute a “danger”. There was no reference by the parties or the intervenor to these alleged contraventions. The response to a contravention is a “contravention direction” under subsection 145(1) of the Code not a “danger direction” under subsection 145(2). 

(213) […] A contravention may or may not be a danger in addition to being a contravention…

[120] To be sure, in some situations, certain contraventions to the Code or its Regulations may pose sufficient high risks to employees that they can amount to a danger as defined in the Code. Based on my analysis above, I have come to the conclusion that, in the case at bar, the identified contravention does not create a situation of danger as defined in the Code. Nonetheless, this does not mean that there is not a contravention to the Code that ought to be corrected.

[121] Paragraph 125(1)(t) of the Code and section 13.13 of the Regulations read as follows:

125(1) without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity

[…]

t) ensure that the machinery, equipment and tools used by the employees in the course of their employment meet prescribed health, safety and ergonomic standards and are safe under all conditions of their intended use;

13.13 Every machine that has exposed moving, rotating, electrically charged or hot parts that processes, transports or handles material that constitute a hazard to an employee shall be equipped with a machine guard that

a) Prevents the employee or any part of his body from coming into contact with the parts or material;
b) Prevents access by the employee to the area of exposure to the hazard during the operation of the machine; or
c) Makes the machine inoperative if the employee or any part of his clothing is in or near a part of the machine that is likely to cause injury.

[122] It is not disputed by the appellants that the milling facility contains numerous exposed moving and rotating electrically charged parts that may pose a hazard to employees. During my visits to the work place milling area, I paid particular attention to the roller mills and the moving and rotating parts that did not have guards. Paragraph 13.13 of the Regulations requires that in such a case, the equipment must be equipped with a machine guard. I therefore conclude that the employer has contravened paragraph 125(1)(t) of the Code and section 13.13 of the Regulations.   

[123] I wish to emphasize that as per the Regulations, only the rotating and moving parts within the facility that are found to constitute a hazard to employees are required to be equipped with a machine guard. During my visits to the milling area of the facility, I observed that some of the pulleys and belts appeared to me to be well beyond the reach of employees standing in front of the roller mills and thus may not pose a hazard to employees while in operation.

[124] According to the Federal Court of Appeal in Martin v. Canada (Attorney General), 2005 FCA 156, given that an appeals officer has all the powers of a health and safety officer, he or she may vary a direction issued by a health and safety officer to provide for what the appeals officer considers the health and safety officer (now known as the Ministerial Delegate) should have directed.

[125] At paragraph 28 of its decision, the Court stated that:

there is no rationale that would justify precluding an appeals officer from making a determination under subsection 145(1), if he finds a contravention of Part II of the Code, notwithstanding that the health and safety officer had issued a direction under subsection 145(2).

[126] In the case at bar, it is my opinion that the contraventions identified by the Ministerial Delegate does not elevate to a situation of danger. Therefore, the Ministerial Delegate erred in issuing a direction to the employer under paragraphs 145(2)(a) and (b) of the Code. Consequently, I will vary the direction in order that it becomes issued under subsection 145(1) of the Code.

Decision

[127] For these reasons, the direction issued by Ministerial Delegate Sterling on May 2, 2016, is varied as per the attached Appendix.

Michael Wiwchar

Appeals Officer