2017 OHSTC 11

Date: 2017-06-23

Case No.: 2016-05

Between:

Shawn Nolan et al., Appellant

and

Western Stevedoring, Respondent

Indexed as: Nolan et al. v. Western Stevedoring

Matter: Appeal under subsection 129(7) of the Canada Labour Code of a decision that a danger does not exist issued by an Official Delegated by the Minister of Labour.

Decision: The decision is rescinded.

Decision rendered by: Mr Michael Wiwchar, Appeals Officer

Language of decision: English

For the appellant: Mr Shawn Nolan, Vice President, International Longshore and Warehouse Union Local 502

For the respondent: The respondent did not participate in the appeal.

Citation: 2017 OHSTC 11

Reasons

[1] These reasons concern an appeal brought under subsection 129(7) of the Canada Labour Code (Code) of a decision rendered by Mr Harvinder Singh, Senior Marine Inspector, Transport Canada and Official Delegated by the Minister of Labour (the Ministerial Delegate) on February 2, 2016. The appeal was filed by Mr Shawn Nolan, an Advisor with the International Longshore & Warehouse Union Local 502 (ILWU Local 502), on behalf of a group of employees affected by the decision in issue, namely, Mr Carl Bye, Ms Nisha Chauhan, Mr Roland Hurtubise, Mr Joshua Jensen, Ms Margaret Lee, Mr Ryan Morin, Mr Franco Rizutti and Ms Nicole Sonier.

Background

[2] On February 2, 2016, the Ministerial Delegate visited the work place of Western Stevedoring located at, 15 Mountain Highway, North Vancouver, BC, to conduct an inquiry into a refusal to perform dangerous work involving numerous ILWU Local 502 employees.

[3] As is contemplated by subsection 129(7) of the Code, Mr Nolan was formally designated by the aforementioned employees to appeal the decision and to act as their representative for the purpose of this appeal. Hereinafter, Mr Nolan and the employees that he represents will be collectively referred to as the appellant.

[4] On February 2, 2016, the Ministerial Delegate rendered his decision in a letter to Mr Shawn Nolan, Vice President, ILWU Local 502. The Ministerial Delegate stated that he visited the work place located at the Fraser Surrey Docks #7, Marine Vessel (MV) Saga Tucano, for the purpose of conducting an investigation following the refusal to work made by members of ILWU Local 502. Mr Steve Porteous, Ship Superintendent and Mr Randy Beatch, Ship Operations Manager, both employer representatives of Western Stevedoring, accompanied the Ministerial Delegate, as well, Mr Phillip D’Sa, another Ministerial Delegate, was present. Mr Nolan was the representative of the employee members of ILWU Local 502. The Ministerial Delegate advised that pursuant to subsection 129(4) of the Canada Labour Code, Part II, the employees are not entitled under section 128 and 129 to continue to refuse to use or operate a machine or thing/a condition in a place, or to perform an activity.

[5] A document signed at 11:20 a.m. on February 2, 2016, by what appears to be Mr Porteous and by what appears to be Mr Beatch at 3:30 p.m. as the employer investigator provided details regarding the work refusal. What follows are salient points that I extracted from the document form:

• The refusing employee indicated on the form was R. Hurtubise, Hold Trainer [who appears to be one of the appellants, Mr Roland Hurtubise]. A box was checked below his information indicating that he was the refusing employee and also the designate person representing multiple refusing employees. The form did not provide the names of the other refusing employees as required by the document form.
• The location of the refusal was identified as Berth 7, aboard the Saga Tucano, Fraser Surrey Docks, 11060 Elevator Rd, Surrey, BC.
• Under section 5, employee’s reasons for believing danger exists the following hand written entry is quoted: “Pre-slung H beam in bundles may fall and injur (sic) or kill worker due to sling failure or pre-slung wires”.
• Under section 6, events leading up to the refusal the following hand written entry is quoted: “Tool box talk, ship’s gear inspected, slings inspected, procedure reviewed”.
• Under section 8, description of investigation, factors considered and the reasons for decision the following hand written entry is quoted: “- Reviewed operation for any imminent danger to workers – Reviewed procedure to ensure reasonably practicable to ensure worker safety”
• Under section 9, decision of employer the following hand written entry is quoted: “No corrective action required as no imminent danger, all workers in position of safety”
• Under section 10, employee response to employer decision or corrective action the “No” box is checked (committee/OHS Representative investigation required) and the signature of Mr Porteous appears to be above the employer investigator signature block that is dated February 2, 2016, 11:20 am. Mr Randy Beatch is indicated as the employer work place committee member.
• Under section 13, description of investigation, factors considered, and reasons for decision the following hand written entry is quoted: “Refusal to lift cargo on pre-slings – Employees refused to sign report”
• Under section 14, decision of work place committee or health and safety representative, the consensus not reached box was checked and the “No” box was checked for agree with employer decision.
• Under section 15, Investigation report provided to employer, the employee work place committee member or health and safety representative signature blocks are not signed and the employer work place committee member or employer designated person appears to be signed by Mr Beatch.

[6] The Ministerial Delegate drafted his report concerning the intervention in a document titled “Investigation Report and Decision” dated February 23, 2016. What follows are salient points that I extracted from the report:

• Transport Canada was advised of work refusal on February 2, 2016, at 1130 hours following a refusal made by employees at 1100 hours.
• The Ministerial Delegate attended the work place and conducted his investigation from 1300 hours and 1530 hours, also in attendance was Mr Philip D’Sa, Senior Marine Inspector and a Ministerial Delegate.
• The statement of the refusal to work obtained from employees of ILWU 502 specified that the employees disagree with the employers work procedures. Explicitly, employees believe that the discharge of steel beams using slings already on the beams from the load port (pre-slung cargo) is a danger as the condition of the sling is unknown. The employees would prefer to use the procedure (Procedure B), which calls for the use of the employer’s slings as required in the procedure. The work place health and safety committee agreed to this procedure.
• The employer believed that the beams can be discharged safely and is a normal practice in shipping worldwide. Visual inspection is done for obvious damage to pre-slung wires prior to lifting. The pre-slung wires come with original test certificates from the load port. This is as per the draft procedure (Procedure A) developed by the employer but not accepted by the employees. It is the employer’s contention that (Procedure B) was developed as an interim measure to meet the conditions on a previous vessel and the direction that was issued to the employer by another Ministerial Delegate. The employer has subsequently tested the slings used on that vessel and has determined that even the worst one have a safety factor of 3:1, and they have developed a temporary (Procedure C) to carry out unloading of the cargo till such time that a more amicable procedure can be agreed upon between the employer, employees and the health and safety committee.
• The employer insisted that the proposed procedure (Procedure C) remains the procedure to follow and made efforts to convince employee representatives to look at the efforts that have been made to ensure safety. The employer argued that the tests conducted by Universal Wire and Rope at the request of the employees indicating suspect damage to the pre-slung wires still had a safety factor of 3:1. The employer calls this: Temporary Agreement for the MV Saga Tucano.
• Documents describing each procedure, A, B and C, were provided and reviewed. The employer made efforts to address the procedures. The health and safety committee does not accept (Procedure A). Both parties accept (Procedure B), however, the employer insisted that it was only an interim measure for a previous vessel discharge. (Procedure B) was developed to comply with a previous 145(2.1) danger direction issued by Ministerial Delegate Tharmalingam on January 7, 2016, where it was observed that slings were found damaged to discharge the cargo from the MV Saga Frontier.
• The employer tested the damaged slings. The test results indicated a minimum safety factor of 3:1 and these results were accepted by to the employer and employees.
• Proposed (Procedure C) addressed the concerns such as inspection of perceived damage wire slings and replacing them.
• Each lift is performed with two sets of slings at each end making it a minimum of 6:1 safety factor. In the unlikely event both wires are damaged, this safety factor is still higher than the safety factor required of 5:1 for a single sling.
• The employer’s foreman will lift each load in the hold and place it on a dunnage (set of hard wood blocks) within the hold. This will free the pre-slung wires for inspection. If any wire were deemed damage, it would be replaced with a new wire of original strength before the lift. In other words, each pre-slung wire will be physically checked before performing the lift out of the hold.
• Employees are required to be either a safe distance away from the load or in the enclosed stairwell as the situation requires. This effectively removes the employees from harm’s way in the worst-case scenario where the weight comes down as a result of a broken sling or any mechanical failure to the crane.

[7] Following his investigation and his evaluation of the circumstances and the facts of the work refusal, the Ministerial Delegate rendered his decision with the following explanation:

• The Employer has demonstrated that the slings even in the damaged condition have adequate residual strength. Additional inspection prior to actual lift of each sling and replacing the wires if any of the wires are deemed broken. They have also demonstrated that in the event of a sling failure and a falling load, adequate precautions have been taken to remove the Employee from danger. The Employees agree that the precaution of standing a safe distance away or in the enclosed area is sufficient to prevent the danger. Hence, the DLPOs are of the opinion that a danger does not exist. Accordingly, a written notification of “No danger” has been issued.

[8] Despite his decision that a danger does not exist, the Ministerial Delegate noted that the respondent’s hazard prevention program was not in compliance with the Maritime Occupational Health and Safety Regulations (the MOHSR). The Ministerial Delegate also noted that the respondent had not clearly defined the inspection process, and had not established clear criteria for discarding a sling. Furthermore, the Ministerial Delegate concluded his report by mentioning that the respondent did not have a documented training in place.

[9] After having been notified of the Ministerial Delegate’s decision that a danger does not exist, the respondent continued operating its activities without implementing the work procedure preferred by the employees (the so-called Procedure B).

[10] On February 4, 2016, Mr Roland Hurtubise, a member of the ILWU Local 502 who is also a dock labour and vessel breakbulk trainer, sent a letter to the respondent to express his concern about damaged slings (found on the dock) that had been used to discharge beams from the cargo on February 2, 2016.

[11] On February 5, 2016, the respondent was still responsible for discharging steel beams from the vessel MV Saga Tucano when the spreader of the crane used by the respondent was subjected to a sudden jerk; a sling parted and dropped the load.

[12] After the incident that took place on February 5, 2016, it appears that the respondent abandoned the procedure for discharging sharp edged steel beams that was followed at the time of the work refusal (and of the incident) and implemented the procedure advocated by the employees (Procedure B).

[13] On February 10, 2016, Mr Nolan filed an application with the Tribunal to appeal the Ministerial Delegate’s decision that a danger does not exist rendered on February 2, 2016.

[14] A hearing was held in Vancouver, BC, on November 1, 2016.

Issue

[15] I have to determine the following issue: Whether the decision that a danger does not exist issued by the Ministerial Delegate under subsection 129(4) of the Code is well founded.

Testimony of the Ministerial Delegate

[16] The Ministerial Delegate was a witness called by the appeals officer and he provided evidence in relation to his investigation and he corroborated and clarified the facts that were set out in his February 23, 2016, investigation report.

[17] In cross-examination by the appellant, the Ministerial Delegate provided testimony surrounding the work refusal process and how the work refusal was initiated. The Ministerial Delegate could not identify the employees that refused to work nor were any interviewed. Other questions were posed to him in regards to the employer’s hazard prevention program and employee training with respect to the lifting procedures at bar. The Ministerial Delegate responded that he assumed that training was provided on safe working procedures and that the hazards were adequately explained to employees.

Appellant’s submissions

[18] The appellant’s case consisted of the testimony of four witnesses, Mr Kal Uppal, Day Business Agent ILWU Local 502, Mr Dan Kask, employee co-chairperson of the work place safety and health committee, Mr Roland Hurtubise, Dock Labour Trainer ILWU Local 502, Mr Rick Hurtubise, Night Business Agent ILWU Local 502 and Mr Nolan also provided sworn evidence.

[19] The appellant called Mr Uppal to testify about his involvement in the issues regarding the slings and his interactions with Mr Kask. He spoke with the experts at Universal Rope about integrity of the wires and he was informed that the only way to determine that is by conducting a pull test; a visual inspection is not determinative.

[20] Mr Kask sits as the co-chairperson for the employees on the work place health and safety committee and he attended the work refusal investigation conducted by the Ministerial Delegates and he stated that Mr John Cross Agent for the MV Saga Tucano was also there on February 2, 2016. It was his opinion that the risk of sling failure under the circumstances was evident and substantial and that the proper procedure was not being followed for this type of lift. He was not made aware by any of the employees that they had made a work refusal. Discussions regarding the work procedures took place and he called Mr Nolan to attend. Mr Kask testified that the crew for this operation consisted of eight employees.

[21] Mr Rick Hurtubise testified that he brought the damaged slings to Universal Rope Fabrication Ltd., Coquitlam, BC, for testing. The company produced a report that provided descriptions, photos and test results. One sample passed while the two others failed. He opined that wire rope is not the proper sling for materials with sharp edges. He was also a reviewer of the job safety analysis done for the discharge I-beams with beam hooks that was finalized in a document dated March 19, 2016. The document provided a step-by-step sequence of events, indicated potential accidents or hazards and preventative measures, seven photos were attached capturing the work process.

[22] Mr Roland Hurtubise is a Dock Labour Trainer and he was present during the work refusal investigation on February 2, 2016. He was in attendance to oversee the work procedure. Mr Hurtubise testified that a work refusal document that provided details mentioned in paragraph [5] had none of his handwriting and he is of the opinion that he was being baited into a work refusal. He stated that safe work procedures were not being followed. He did not sign the document and it is his view that none of the employees refused to work. He took photographs of the damaged slings on February 2, 2016, at approximately 9:30 a.m. As well, he took photographs of the damaged slings on February 4, 2016 from a discharge of pre-slung I-beams out of the MV Saga Tucano and on February 6, 2016, those photos depicted damaged swages.

[23] In a letter dated February 4, 2016, that was faxed to Western Stevedoring, Mr Hurtubise stated that he worked on the Fraser Surrey Docks as a Dock Trainer and while at work he observed that there were damaged slings used to discharge the MV Saga Tucano and since he is a Vessel Bulkhead Trainer as well, he works directly in the hatch with longshore gangs and that raised his concern. The letter included photographs of the damaged slings and he stated that those pictures document the fact that slings are regularly being severely damaged as a result of discharging I-beams. Those particular slings arrive with the vessel from the port of origin and they are not the usual stevedore slings that are typically used to discharge sharp edge steel cargo. He stated that the employer directed them to use those pre-slings.

[24] Mr Nolan testified that he was called by Mr Kask to attend the work place on February 2, 2016. It was Mr Nolan’s view that the issues involved in the incident were being dealt with through the internal complaint resolution process and he stated to the employer to stop pushing the work refusals. He stated that no employees from the MV Saga Tucano called him about a work refusal. He provided evidence relating to the ILWU training procedure that informs and instructs workers on the ship and dock to hazards and correct procedures on discharging pre-slung steel loads.

[25] Mr Nolan entered into evidence an incident report with photographs received and produced by Ministerial Delegate D’Sa. The incident occurred on February 5, 2016, on board the MV Saga Tucano at approximately 11:00 a.m. while lifting a load of steel H-beams, the sling at one end parted dropping the load. There were no injuries to employees. The investigation report stated the following findings that I quote:

• 1. There was inadequate dunnage between the layers of steel cargo, both in size & quantity of dunnage used. The load on the dunnage was approx. 3400 MT during the voyage. This resulted in the dunnage cracking and splintering. The failure of the dunnage allowed the slings to be compressed and damaged, both vertically between two layers and horizontally between adjacent bundles. (Photo 1)
• 2. The damage to the slings, reduced the residual strength of the slings to below the weight of the load.
• 3. The sling that broke, parted at approx.. 2m. from the eye, which is the area in contact with the edge of the beam. (Photo 2)
• 4. Compression damage to some of the swaged ends, showed cracking of the swage. (Photo 3)
• 5. The crane was checked by a competent person and found to be in good working order.

[26] The appellant alleges the safety concerns regarding “pre-slung snatch and go” operations have been around for years, and that the respondent has neglected safety protocol in addition to having a negative attitude towards safe work regulations under the Code.

[27] Despite having brought up, both on the job and in boardroom meetings, the need for the respondent to be in compliance with the federal Hazard Prevention Program Regulations, the appellant submitted that the respondent was not responsive and preferred to ignore the appellant’s recommendations in order to remain competitive and productive under the pressure imposed by clients.

[28] The appellant claims the respondent refused to use a cooperative approach and follow the safe work procedure discussed in the January 7, 2016, meeting after attending additional private and joint meetings with both the ILW Union and Transport Canada.

[29] The appellant also claims the evidence submitted during the hearing has shown a departure from the safe work procedure agreed to by the respondent, which addressed the major hazards associated with the use of round-wire-rope slings to discharge steel I-beam cargos. This departure from the approved procedure was, according to the appellant, the result from pressure exercised by a shipping representative, Mr Cross, from MV Saga Tucano who was present on the vessel at the relevant time.

[30] This negative approach by the respondent, as reported by the appellant, forced Transport Canada into rendering a decision of no danger despite an internal complaint resolution process being underway as per Part II of the Code. The appellant argues that the internal complaint resolution process needed to be exhausted before an investigation by a Ministerial Delegate would take place, and therefore assert the Ministerial Delegate erroneously issued his decision that a danger does not exist since he failed to wait until the internal complaint resolution process was completed.

[31] To further support the claim that the Ministerial Delegate made an unfounded decision that a danger does not exist, the appellant points to the fact that the respondent did not abide by the requirements of the Code to identify, assess and eliminate or mitigate hazards, that the respondent did not develop safe work processes and procedures, and that the respondent did not provide the proper training to its employees. The appellant also states that according to the Ministerial Delegate’s testimony and report, the Ministerial Delegate was aware the employer was not in compliance with Part VII of the MOHSR, and Part XIX of the Canada Occupational Health and Safety Regulations (the COHSR).

[32] The appellant submits that before the Ministerial Delegate could make a determination of whether or not a danger existed, the respondent should have made an assessment of the potential hazards as they exist or could be expected to arise. The appellant also submits that the respondent should have made sure employees were provided with necessary personal protective equipment, clothing or devices and materials against hazards, and with the proper training relating to the new safe work procedure. The appellant refers to the “Further Findings” section of the Ministerial Delegate’s report to reiterate that the respondent does not have a documented training process in place.

[33] The appellant then submits that its health and safety representative, as well as the vice president of ILWU Local 502, Mr Nolan, pointed out in their testimonies that the risk of sling failure was inevitable because of compromised wire rope slings from loading, voyage, lack of protection from sharp edges and inadequate dunnage between the layers of steel. To show the slings used for loading the vessel were bent, kinked, distorted, had wires cut and had been used with inadequate dunnage, the appellant relies on photographs taken by steel trainer Mr Roland Hurtubise in the Ministerial Delegate’s presence.

[34] The appellant contends that after a straight-pull test on the slings used by the respondent’s workers to discharge cargos, these slings, whether in damaged or good condition, failed to demonstrate adequate residual strength when a lift is operated on a sharp edge.

[35] The appellant then raises the concerns expressed by Mr Hurtubise and Mr Kask in their testimonies about the respondent not following its own safe work procedure. Mr Hurtubise stated the respondent held that slings could be inspected visually by crouching down to see under the load while it is suspended six to ten foot up in the air, which is contrary to the safe work procedure.

[36] The appellant argues that the decision that a danger does not exist was predetermined from comments made in a meeting between Transport Canada, the British Columbia Maritime Employers Association (BCMEA) and the respondent that took place on January 29, 2016. The appellant also claims that a work refusal by Local 502’s employees never took place, and that this fact was confirmed in Ministerial Delegate Singh’s testimony and by Mr Nolan in the February 2, 2016, written notification of a health and safety officer’s decision of no danger.

[37] The appellant finally puts emphasis on the incident that happened on February 5, 2016, subsequent to the work refusal. Ministerial Delegate Philip D’Sa’s incident report indicates that the spreader of the crane was subjected to a sudden jerk and came to rest at an angle to the horizontal, dropping the load. Another Ministerial Delegate’s report following his separate investigation into this incident also indicates that the slings used to lift the beams were bent, kinked, and distorted, wires were cut, and there was inadequate dunnage between the layers of steel. After this incident, the appellant notes that the respondent abandoned the draft procedures it had insisted on following to instead follow the safe work procedure preferred by the employees.

[38] For the aforementioned reasons, the appellant requests the rescission of the February 2, 2016, ruling that a danger does not exist.

Analysis

Preliminary matters

[39] Before turning to the issue of whether the decision that a danger does not exist rendered by the Ministerial Delegate under subsection 129(4) of the Code is well founded, I will address two incidental matters raised by the appellant.

[40] First, the appellant pointed out that the Ministerial Delegate called into question the respondent’s compliance with the provisions of applicable regulations in his report. On that basis, it alleged that the Ministerial Delegate failed to properly ascertain whether the employees had been adequately trained by the respondent to perform the discharging operations and whether they were informed of all foreseeable hazards.

[41] However, I note that the Ministerial Delegate did not indicate that any specific provision of Part II of the Code was contravened nor did he issue directions (i.e., contravention directions) to the respondent under subsection 145(1) of the Code. Accordingly, I find that the issue of whether the respondent contravened the provisions of the Code, the COHSR or the MOHSR is beyond the scope of this appeal.

[42] For the sake of completeness, it warrants noting that the Ministerial Delegate visited the work place for the purpose of conducting an investigation into a refusal to perform dangerous work, as opposed to inquiring into the compliance of the respondent’s hazard prevention and training programs with the Code and applicable regulations. As a result, the appellant’s allegations regarding the respondent’s failure to comply with its regulatory obligations are not directly connected to the central issue of the appeal. In any event, they have not been fully addressed in the Ministerial Delegate’s investigation report and in the evidence presented. I therefore find that it would be inappropriate to address in this appeal the issue of whether the respondent breached its specific obligations concerning hazard prevention and training.

[43] I further note that the appellant claimed that that no employee actually refused to work on February 2, 2016. Specifically, the appellant submitted that the Ministerial Delegate’s decision was made without jurisdiction and without evidence as he was unable to confirm who refused to work on that day. The appellant went so far as suggesting that the Ministerial Delegate accepted a falsified document as a bona fide work refusal, without attempting to confirm the names of the refusing employees. In the appellant’s view, it was the respondent that spearheaded and executed the work refusal in an attempt to have the method of discharging cargo using pre-slung wires determined safe.

[44] These are grave allegations that I am not prepared to examine for the following reasons. First, they raise the threshold issue of whether I have the power, as an appeals officer, to determine that a Ministerial Delegate acted without jurisdiction and therefore rendered an invalid decision that a danger does not exist. This is a complex legal issue which, given that it is not represented by legal counsel, the appellant has, understandably, not addressed in his submissions. I believe that it is preferable for such a significant question to be analyzed with the benefit of more substantive legal submissions.

[45] Second, even assuming that I would have the authority to rescind the decision on the grounds that the Ministerial Delegate’s investigation was flawed and his decision rendered without jurisdiction in the absence of an actual work refusal, the appellant did not request that I decline to inquire into the merits of this appeal and close the file on that basis. Rather, the appellant is asking that I rescind the decision on the grounds that, on the facts of this case, the Ministerial Delegate erred in finding that a danger did not exist.

[46] In order for me to examine this issue, there must be a valid decision, duly rendered by the Minister through its delegate, under subsection 129(4) of the Code. Indeed, as is clearly set out in subsection 146.1(1) of the Code, in an appeal under subsection 129(7) of the Code, that my task is to inquire into the circumstances of the decision of the Ministerial Delegate and the reasons for it. To carry out this mandate and exercise my jurisdiction for the purpose of determining, on an objective standard, whether there was in fact a danger, I must therefore accept the legitimacy of the Ministerial Delegate’s investigation and decision that a danger does not exist. I will proceed accordingly. Marie-Claude Turgeon

Danger

[47] The issue that needs to be determined to resolve this appeal is whether the decision that a danger does not exist issued by Ministerial Delegate Singh is correct having regard to the evidence before me and the requirements of the Code. To decide whether to vary, confirm or rescind the decision, I will need to ascertain whether the performance of an activity, that is, the discharge of steel beams using slings already on the beams from the load port (pre-slung cargo) constituted a danger for the respondent’s employees.

[48] 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.

[49] 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 Peter 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?

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

What is the alleged hazard, condition or activity?

[51] The appellant alleges that the discharge of steel beams from the MV Saga Tucano using the slings already attached on the beams at the port of origin constituted a danger because the evidence demonstrates that these slings were made up of compromised wire ropes resulting from loading operations, voyage, lack of protection from the sharp edges of the cargo and inadequate dunnage between the layers of steel. The appellant pointed that the risk of sling failure was inevitable, which created a serious injury hazard for employees given the likelihood that heavy cargo fall from the crane in these conditions.

[52] The Ministerial Delegate concluded that this situation did not constitute a danger, finding instead that the respondent had demonstrated that the slings, even those in damaged condition, had adequate residual strength. He also considered that the respondent had in place a protocol for additional inspection and replacement of damaged wires on the slings prior to the actual lifting of the cargo.

[53] In the analysis that follows, I will examine whether the employees’ undisputed exposure to the operation of discharging heavy metal beams using slings already attached to the cargo at the port of origin posed an imminent or serious threat to their life or health at the time of the Ministerial Delegate’s investigation.

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?

[54] Following the interpretation of appeals officer Strahlendorf in Ketcheson (at para. 205), 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. I concur with this interpretation.

[55] In the case at hand, to conclude to the existence of an imminent threat, the evidence has to show that there was a reasonable possibility that employees would get injured as a result of the failure of the slings on the day of the Ministerial Delegate’s investigation (February 2, 2016). In other words, the evidence must demonstrate that the threat the employees’ life or health could have been reasonably expected to materialize on that day.

[56] In my opinion, subsequent events (i.e. the incident that occurred on February 5, 2016) and the pictures clearly showing the damaged conditions of the slings used on February 2, 2016, filed by the appellant indicate that the risk of sling failure could not be excluded and that the possibility of an incident causing injury to the employees on that day existed. However, evidence demonstrating the mere possibility that the threat would materialize and cause injury on February 2, 2016, is insufficient to conclude to the existence of an imminent threat to the life or health of employees. The evidence must establish that an incident causing injury on that day was reasonably foreseeable.

[57] On the basis of my review of the evidence, I do not have enough information on the circumstances prevailing on that day to conclude that an incident could have reasonably been expected to occur or was on the point of happening on February 2, 2016. Moreover, the appellant stated that the safety concerns regarding “pre-slung snatch and go operations have been around for years”, which suggests that its allegations of danger are not limited to the specific circumstances that prevailed on that day. Rather, my understanding of the appellant’s position is that it is more concerned with the probability that the continued use of slings already attached to the cargo would cause injury at some point in the future.

[58] For these reasons, I am unable to 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?

[59] Following the interpretation of Appeals Officer Strahlendorf in Ketcheson (at para. 210), to conclude to a serious threat, there has to be a reasonable possibility that the threat will materialize and cause significant or severe 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. However, to conclude to 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. Again, I agree entirely with this interpretation.

[60] In short, determining whether a hazard, condition or activity in the work place can reasonably be expected to be a serious threat to the life or health of employees where, such as in this case, the exposure of the employees to the hazard, condition or activity is beyond dispute, entails the consideration of the following probabilities: (i) the probability that this hazard, condition or activity will cause an event or incident susceptible to causing injury or illness and (ii) the probability that, if such event or incident occurs, it will cause serious (i.e., severe) harm to an employee.

[61] Given that the Code’s definition of danger is based on the concept of reasonable expectations, the mere possibility that such an event or incident causing serious harm could occur is not sufficient to conclude to the existence of a serious threat. There must be sufficient evidence to establish a reasonable possibility that the employees could be subject to such serious harm as a result of their exposure to the alleged hazard, condition or activity.

[62] The determination of whether the materialization of the threat is a reasonable possibility as opposed to a remote or hypothetical one, is not always an easy task. It is a matter of fact in each case and will depend on the nature of the activity and the context within which it is examined. It involves a question of appreciation of facts and passing judgment on the likelihood of occurrence of a future event. In my view, an acceptable way to make this determination is to ask the following question: would a reasonable person, properly informed and viewing the circumstances objectively and practically, conclude that an event or incident causing serious harm to an employee is likely to occur?

[63] To determine that a serious threat to the life or health of the employees existed in this case, there must therefore be sufficient evidence to establish a reasonable possibility that their exposure to the operation of discharging steel beams using slings already attached to the cargo could result in a severe injury to them at some time in the future. In other words, the focus of my analysis is the probability that the alleged hazard, condition or activity will cause serious (i.e., severe) injury or illness in the days, weeks or months following February 2, 2016.

[64] The conditions to conclude to the existence of a serious threat to the life or health of employees will be met to the extent that there is sufficient evidence to conclude that (i) the use of slings already attached to the cargo could reasonably be expected to cause an incident (i.e., dropping a load) susceptible to causing injury, and (ii) in that event, serious harm or injury to an employee can reasonably be expected to occur.

[65] Having thought this matter through, the evidence and submissions of the appellant persuade me that employees were exposed to a serious threat to their life or health and, thus, to a danger, when they were engaged in the activity that is at the heart of the present appeal. Undeniably, one cannot seriously dispute that in the event of a sling failure resulting in the drop of a heavy load of metal beams, serious injury, even the death of an employee, can reasonably be expected to occur. I have heard no evidence suggesting that in that unfortunate event, the injuries that employees could potentially suffer would be minor or inconsequential.

[66] Thus, the issue becomes whether the evidence demonstrates that the discharging of steel beams using the slings already attached to the cargo could reasonably be expected to cause an incident at some point in the future in the circumstances of this case. In this regard, the appellant filed photographs of the slings that the respondent considered safe to discharge the cargo of the vessel at all relevant times. These pictures clearly show their poor condition. That some of the slings were bent, distorted, cut and were used with inadequate dunnage between the layers of steel is obvious. Looking at these pictures objectively, I can only conclude that they suggest that the risk of their failure was high.

[67] I note that the Ministerial Delegate stated in his report that the respondent demonstrated that the slings even, in damaged conditions, had adequate residual strength. However, this conclusion is contradicted by the evidence and testimony of the appellant’s witnesses presented during the appeal hearing. In particular, the evidence given by Mr Rick Hurtubise, including the results of tests conducted at a testing facility simulating the lift of metal with sharp edges, clearly show that, in fact, the slings used on February 2, 2016, failed to have adequate residual strength.

[68] In fairness, the Ministerial Delegate did not have access to the totality of this evidence at the time of his investigation but I can consider it since this appeal a de novo process. I find that significant weight should be given to this evidence as it confirms that the appellant’s concerns with the use of the pre-attached slings, some of which were damaged as shown by the pictures taken, were real and serious. In my view, a reasonable person looking at this information objectively can only conclude that, in such circumstances, an incident involving the failure of the slings and a potentially life-threatening drop of a load was more likely than not to occur.

[69] Similarly, the Ministerial Delegate’s conclusion that the respondent had in place a protocol for additional inspection and replacement of damaged wires on the slings prior to the actual lifting of the cargo is not borne out by the evidence before me. In fact, the testimony of the appellant’s witnesses was unanimous: the respondent was not following the safe work procedures approved by the Joint Health & Safety Committee (JHSC) and the inspection of the slings was merely a visual inspection while a pull test is required to ensure the safety of the slings.

[70] What is more, the fact that an incident involving the drop of a load actually occurred a couple of days after the Ministerial Delegate’s investigation cannot be understated. I find that this occurrence removes any doubt that, on the facts of this case, there was a reasonable possibility that the discharge of steel beams from the MV Saga Tucano using the slings already attached on the beams at the port of origin would result in an incident causing serious injury to the respondent’s employees. Accordingly, I conclude that the performance of this activity, in the circumstances prevailing on February 2, 2016, amounted to a serious threat to the life or health of the employees involved.

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

[71] On the last prong of the test, suffice it to say that there is no evidence that the respondent was prepared to alter the method of discharging the vessel using the slings already attached to the cargo and follow the safe working procedures recommended by the JHSC and preferred by the employees until the incident occurred on February 5, 2016. Accordingly, it is clear that the serious threat to the life or health of employees described above existed before the activity in issue was altered.

[72] For the foregoing reasons, I find that a danger existed in the circumstances of this case and that the Ministerial Delegate erred in deciding otherwise. In view of that, the decision rendered on February 2, 2016, is rescinded.

[73] Lastly, it is important to note that after the incident which occurred on February 5, 2016, the evidence presented establishes that the respondent ceased the practice of using the slings already attached to the cargo and abandoned the discharging procedure challenged by the appellant. It appears that it has now implemented the safe work procedures approved and recommended by the JHSC which calls for the use of the respondent’s own slings.

[74] The appellant further stated the following at the end of its submissions:

• [t]his time Western Stevedoring and Local 502 followed the HPP program where they jointly began to develop through the Health & Safety committee a plan to do a Job Hazard Analysis which was done and a report submitted with photos (Exhibit #5). In that report, all hazards were identified and preventive measures addressed. New alternative lifting devices were identified and discharge methods added to the Safe Work Procedure.

[75] Unmistakably, the dangerous situation caused by the use of slings already attached to the cargo has now been addressed and rectified by the respondent to the satisfaction of the appellant. Given the action and measures that have already been taken to alter the activity that constituted the danger, I find that it is not necessary that I issue any direction under subsection 145(2) or (2.1) of the Code.

Decision

[76] For these reasons, the appeal is allowed and the decision issued by Ministerial Delegate Singh, on February 2, 2016, is rescinded.

Michael Wiwchar

Appeals Officer