2017 OHSTC 7

Reasons

[1] This decision concerns an application by the Canadian Air Transport Security Authority (CATSA) to be added as a party in this appeal filed against a decision that a danger does not exist rendered by an Official Delegated by the Minister of Labour (Ministerial Delegate). The application was filed with the Occupational Health and Safety Tribunal Canada (Tribunal) on January 19, 2017.

[2] For the reasons that follow, I am of the view that the application should be granted.

Background

[3] On November 15, 2016, Meghan Fanjoy, a screener employed by STAS, refused to work because she was concerned about the levels of radiation emitted by a baggage screening device located at a passenger screening point. The work refusal took place at the Greater Moncton International Airport (YQM).

[4] Ms. Fanjoy's work refusal stated the following:

I am refusing to work the x-ray and basket positions because of safety concerns. There are gaps in the lead curtains so light can be seen through the x-ray machine. I do not want to be directly exposed to the x-rays for my health and safety and the health and safety of my children when I am pregnant. Also, as bins enter and exit the tunnel the x-ray light is on when the curtains are open.

[5] On November 18, 2016, Normand Devarennes, Ministerial Delegate, rendered a decision that a danger does not exist based on an investigation conducted for a work refusal initiated by Cheryl Lee Pitre. Mr. Devarennes used the result of this previous investigation since the concerns are the same and involve the same location and equipment. Mr. Devarennes' decision states the following:

On November 18, 2016, I conducted an investigation of the refusal to work made by Meghan FANJOY at the work place located at Greater Moncton International Airport, 777 Aviation Blvd, Unit 110, Dieppe, New Brunswick, E1A 7Z5.

Please be advised that pursuant to subsection 129(4) of the Canada Labour Code, Part II (Code) and based on a decision made on a previous assignment pertaining to the same concerns, it is my decision that a danger does not exist.

[6] An application to appeal this decision that a danger does not exist by Ministerial Delegate Devarennes was filed with the Tribunal on November 30, 2017, by Ms. Fanjoy.

[7] On February 3, 2017, CATSA filed submissions in support of a request to participate in the current appeal as a party.

[8] The respondent supports the applicant's right to participate in the matter as a party, while the appellant did not file any opposition to the granting of party status to CATSA.

Issue

[9] Does the applicant have a valid ground to claim being directly affected by the decision in this matter and have sufficient legal interest to be added as a responding party with full participatory rights?

Submissions of the applicant

[10] The applicant is a Crown corporation established as an agent of the Government of Canada pursuant to the Canadian Air Transport Security Authority Act (the Act). The applicant is responsible for the screening of non-passengers, airport workers, passengers and their baggage conducted at screening checkpoints at designated airports across Canada, including at YQM, in order to prevent any person from transporting a threat item on an aircraft by placing such item on their person, in carry-on luggage, or in checked baggage. Those responsibilities will hereinafter be designated as "screening".

[11] Under section 6(1) of the Act, CATSA's mandate is described as follows:

The mandate of the Authority is to take actions, either directly or through a screening contractor, for the effective and efficient screening of persons who access aircraft or restricted areas through screening points, the property in their possession or control and the belongings or baggage that they give to an air carrier for transport. Restricted areas are those established under the Aeronautics Act at an aerodrome designated by the regulations or at any other place that the Minister may designate.

[12] As mentioned in section 6(1), part of the applicant's mandate is the effective and efficient screening of passengers. In order to deliver screening at YQM, one of its screening points, CATSA states that it has contracted with STAS. The Act describes a screening point as follows:

A point where screening is delivered, either directly or through a screening contractor, by the Authority or by an authorized aerodrome operator acting on behalf of the Authority, in order to meet the requirements of aviation security regulations, security measures, emergency directions or interim orders made under the Aeronautics Act.

[13] CATSA explains that it owns and maintains the screening equipment at airports across Canada, including baggage x-ray machines, and is therefore responsible for the screening at YQM, even though it is through STAS, a screening contractor. CATSA must still answer to its mandate under the Act by taking action to ensure efficient and effective screening. The applicant states that it cannot transfer responsibility for providing effective, efficient and consistent screening in the public interest, having regard to the interest of the traveling public, to a screening contractor.

[14] CATSA believes it has substantially the same interest as STAS in the present appeal because being the authority responsible for screening in Canada, it has an interest in taking steps to ensure that screeners are performing passenger screening safely in an effective and efficient manner, and as the owner of the screening equipment, it must take steps to ensure that screeners utilize screening equipment in accordance with CATSA's procedures, safety protocols and regulatory obligations.

[15] The applicant claims that it must ensure its screening operations are maintained in accordance with section 27 of the Act at any of the designated airports, including YQM, because of the importance of screening to the safety of the Canadian public:

27. The provision of screening at an aerodrome is conclusively deemed for all purposes to be a service that is necessary to prevent immediate and serious danger to the safety of the public.

[16] According to the applicant, its activities would be affected by a decision in respect of the x-ray machine at YQM or of the procedures relating to the operation of the machine since the decision could impact the delivery of CATSA's security screening mandate at YQM and other Canadian airports.

[17] CATSA also believes its participation in the appeal should be permitted because it will assist in the resolution of the issue and will not cause prejudice to the parties. They argue they have a real, substantial and identifiable interest in how its equipment is utilized and has extensive knowledge of the equipment, its installation, use and maintenance.

[18] For the reasons aforementioned, CATSA requests to be granted the right to participate in the matter as a party, or in the alternative, to obtain intervenor status.

Analysis

[19] The power of the Tribunal to add a party to a proceeding stems from paragraph 146.2(g) of the Code that reads as follow:

146.2(g) For the purposes of a proceeding under subsection 146.1, an appeals officer may

[…]

(g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer's opinion has substantially the same interest as one of the parties and could be affected by the decision;

[20] Accordingly, I must decide if the applicant has substantially the same interest as one of the parties, and if the applicant could be affected by a decision to the current appeal.

[21] CATSA's mandate under the section 6 of the Act is clear: It must ensure "effective and efficient screening of persons who access aircraft or restricted areas through screening points", and it is also responsible for "ensuring consistency in the delivery of screening across Canada".

[22] The applicant contracts with STAS to perform the screening at YQM. Consequently, STAS is responsible to carry out CATSA's mandate at YQM's screening point, but CATSA must still ensure that STAS' screeners are performing passenger screening safely and consistently with other screening points across the country.

[23] Moreover, the applicant is the owner of the baggage screening device that is subject to the appellant's work refusal. The applicant developed procedures, safety protocols and regulatory obligations related to the use of its screening devices, and must ensure the equipment is used properly by the screeners. CATSA's expertise is necessary in order to carry out this appeal.

[24] I conclude that CATSA and STAS' interests are substantially the same, as both entities are responsible to ensure effective and efficient screening at YQM, through the use of the equipment provided and regulated by the applicant.

[25] Any decision in respect to the x-ray machine at YQM or to the procedures relating to the operation of said machine would not only impact the delivery of CATSA's screening mandate at YQM, but also potentially at other screening points across Canada. This fact alone demonstrates that CATSA could be affected by a decision of the Tribunal relating to the current appeal.

[26] Because the applicant has substantially the same interest as STAS and could be affected by the decision, I am of the opinion that CATSA should be made a party to this appeal. As such, the applicant will be added as a party with full participatory rights in this appeal.

Decision

[27] The application to be made a party to the appeal is granted. Accordingly, the applicant will be added as a respondent.

Jean Arteau

Appeals Officer