2017 OHSTC 14

Date: 2017-08-17

Case No.: 2017-15

Between:

Carolle Cornish, Appellant

and

Canada Post Corporation, Respondent

and

Canadian Union of Postal Workers, Applicant

Indexed as: Cornish v. Canada Post Corporation & Canadian Union of Postal Workers

Matter: Application for leave to participate in the proceeding as an intervenor

Decision: The application is granted.

Decision rendered by: Marie-Claude Turgeon, Appeals Officer

Language of decision: English

For the appellant: Herself

For the applicant: Ms. Rebecca M. Atkinson, Counsel, Cox & Palmer

For the respondents: Mr. David Bloom, Counsel, Cavalluzzo Shilton McIntyre Cornish

Citation: 2017 OHSTC 14

Reasons

[1] The present decision concerns an application by the Canadian Union of Postal Workers (“CUPW” or “the applicant”) to obtain intervenor status in an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) by Ms. Carolle Cornish. The appeal was filed against the decision that a danger does not exist rendered on May 10, 2017 by the Official Delegated by the Minister of Labour, Hollie Philpott, in her capacity as an Official Delegated by the Minister of Labour (hereinafter the “Ministerial Delegate”).

[2] For the reasons that follow, I am of the opinion that the application to obtain intervenor status should be granted.

Background

[3] On May 3, 2017, the appellant, Ms. Cornish, refused to drive her work vehicle, the Grumman LLV, alleging a number of reasons including no notification of the manufacturers’ specified limitations for the safe operation of the vehicle, the absence of information regarding maximum load capacity for the vehicle, the absence of means to secure the load in the cab or in the cargo area of the vehicles, the age of the vehicle and the failure of the respondent to service and maintain the vehicle, the risk of sprain due to lifting, the risk of vehicle fire, the absence of side impact protection, airbags, rollover protection, back up cameras and emergency equipment, no first aid training, and CO2 leakage into the cabs.

[4] Following the appellant’s refusal to work, Ministerial Delegate Philpott was appointed to the case, conducted an investigation, and rendered a decision that a danger does not exist regarding the circumstances of the appellant’s work refusal.

[5] On May 10, 2017, the appellant filed an appeal of the Ministerial Delegate’s decision with the Occupational Health and Safety Tribunal Canada (Tribunal). The respondent in this appeal is Canada Post Corporation (“Canada Post” or “the respondent”).

[6] On June 19, 2017, CUPW filed a request to be granted intervenor status. The respondent expressed its support for CUPW’s request to participate in the appeal as an intervenor. The appellant did not provide any submissions regarding the matter.

Issue

[7] Does the applicant have sufficient interest to be granted intervenor status?

Submissions of the applicant

[8] The applicant requests the grant of intervenor status on the basis that it is an interested party as required by paragraph 146.2(g) of the Code, and anticipates supporting the respondent’s position to confirm the decision that a danger does not exist. The applicant specifies that it reserves the right to submit, in unusual or exceptional circumstances, that the utilization of the Grumman LLV right hand drive vehicle presents a danger within the meaning of Part II of the Code.

[9] The applicant states that it acts as the certified bargaining agent for all rural and suburban mail carriers, and that it is responsible to consult with Canada Post in respect to health and safety matters and technological changes that may affect the safety of work procedures and the quality of the work environment.

[10] The applicant also states that it has previously engaged in extensive consultation regarding the introduction of the Grumman LLV right hand drive vehicle, which was approved after identification and implementation of appropriate vehicle retrofits and significant on road testing. The applicant asserts that the vehicle introduced is a safe vehicle, and that it is used widely across Canada for rural and suburban mail delivery.

[11] The applicant then lists factors that have previously been considered by appeals officers in order to determine whether a person should be granted intervenor status, including whether the intervenor can assist in the resolution of the matter, whether the intervenor can bring a different perspective to the issue, whether the intervenor can make a useful contribution to the proceedings or whether the intervenor’s participation would cause injustices to the other parties (Canadian National Railway Company (CN Rail) and James Poirier and Teamsters Rail Canada Conference, Decision No.: OHSTC-08-018 (I).

[12] The applicant finally reminds the undersigned of previous cases in which the Tribunal granted intervenor status to CUPW when employees claimed that the Grumman LLV vehicle was a danger: Canada Post Corporation v. Vivian and Beeton, 2014 OHSTC 6; Canada Post Corporation v. Diana Baird, 2012 OHSTC 21; Canada Post Corporation, 2012 OHSTC 34; and decision-letters rendered in cases 2011-12, 2011-26, 2012-38 and 2016-03.

Analysis

[13] Appeals officers have been granted, under paragraph 146.2(g) of the Code, the power to make a party to the proceeding any person or group who has substantially the same interest as one of the parties and could be affected by the decision. Appeals officers may also exercise their discretion to grant intervenor status in the best interest of the proceedings. In the case at hand, the applicant sought intervenor status.

[14] An appeals officer recently exercised his discretion to grant the applicant limited standing as an intervenor in Royal Canadian Mounted Police and Mounted Police Professional Association of Canada, 2016 OHSTC 10 after establishing the interest of the applicant in the appeal as well as the likelihood of the applicant to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[15] Coherently, I will now decide if I should use my discretion to grant intervenor status to the applicant by analyzing if the applicant has an interest in the appeal and if the applicant’s intervention will assist the appeals officer in making a decision.

[16] The applicant is closely involved with the respondent in what concerns health and safety procedures and is also involved in technological changes that affect the safety of work procedures and the quality of the work environment. For these reasons, I find the applicant to have sufficient legal interest in the matter to participate in the appeal.

[17] I also find that because the applicant has participated in the implementation of the Grumman LLV as a work vehicle for the rural and suburban mail carriers, the applicant would make a useful contribution to the proceedings and would diligently assist in the resolution of the matter.

Decision

[18] The application for intervenor status is granted and the scope of the intervenor’s participation is as follows:

- cross-examine the appellant’s witnesses; and

- provide the appeal officer with final written submissions.

Marie-Claude Turgeon

Appeals Officer