2017 OHSTC 17
Date: 2017-08-31
File No.: 2017-21
Between:
Transport MTL Zénith Inc., applicant
Indexed as: Transport MTL Zénith
Matter: Application under subsection 146(2) for a stay of two directions issued by an official delegated by the Minister of Labour
Decision: The application for a stay is denied
Decision rendered by: Mr. Olivier Bellavigna-Ladoux, appeals officer
Language of the decision: French
For the applicant: Mtre Marie-Lyne Rabouin, Attorney, Le Palier Juridique inc.
Citation: 2017 OHSTC 17
Reasons
[1] These reasons concern an application brought under subsection 146(2) of the Canada Labour Code (the Code) for a stay of two directions issued by Jessica Tran in her capacity as Official Delegated by the Minister of Labour (Ministerial Delegate) on May 26, 2017.
Background
[2] On April 12, 2017, after learning of the death of an employee in the Fedex Freight Canada Corporation yard at 10765 Côte-de-Liesse Road, Dorval, the Ministerial Delegate went to the site to begin an investigation. In her detailed report, the Ministerial Delegate described the worksite as a terminal owned by Intermediate Terminals Warehousing Inc. There are two buildings at the terminal which are occupied by several provincial and federal government tenants. On the east side of the buildings are loading bays, a shipping lane and parking facilities for trucks and trailers.
[3] Transport MTL Zénith Inc. ("Transport Zénith", "the applicant" or "the employer") is a general transport company that works on a regular, ongoing basis in Ontario. It delivers goods for Fedex Freight Canada Corporation pursuant to a service contract. Fedex Freight Canada Corporation leases part of 10765 Côte-de-Liesse Road. Transport Zénith retains the services of two drivers and provides the tractors required for transporting the goods. The two drivers in question both have registered companies and are paid flat amounts for each trip.
[4] As part of her investigation into the circumstances surrounding the death of one of the two drivers, the Ministerial Delegate studied the jurisdiction governing Transport Zénith, as well as the employer-employee relationship between the company and the two drivers. She found that both drivers are employees of the applicant and that Transport Zénith is under federal jurisdiction.
[5] Being of the opinion that the applicant should analyze the risks run by its drivers at the terminal and implement work safety procedures, the Ministerial Delegate issued two directions to the employer.
[6] The first direction was issued under paragraph 141(1) a) of the Code. The relevant passage of this direction reads as follows [translation]:
Consequently, you are hereby ordered, under paragraph 141(1) a), Part II of the Canada Labour Code:
To assess the risks of your employees (in ground handling) of being struck, hit or run over by their own motor vehicles or other motor vehicles travelling in close proximity in the yard of 10765 Cote-de-Liesse Rd. at Dorval, taking into account that:
- the yard is not under the employer’s full and complete authority;
- trailer connections/disconnections may be done during the day or at night, sometimes with low visibility;
- background noise from airplane takeoffs/landings at the Montreal Airport might sometimes muffle the sound signal from motor vehicles backing up or travelling in the area.
This analysis must be done with the participation of a workplace health and safety employee representative.
[7] The second direction was issued under subparagraphs 145(2) a) and b). The relevant passage of this direction reads as follows [translation]:
The Official Delegated by the Minister of Labour considers that the accomplishment of a task constitutes a danger to an employee at work, namely:
The presence of an employee on foot, unprotected from the risks of colliding with moving vehicles, not wearing a traffic safety vest or similar clothing, in an area where several vehicles are moving during the connection/disconnection of trailers, poses a danger of being hit or run over by a vehicle.
Around 3:30 a.m. on April 12, 2017 in the yard of 10765 Côte-de-Liesse Rd., Dorval (on the east side of the building near the Fedex Freight Canada Corp. loading docks), Mr. Monette was connecting/disconnecting the components of a Type A truck trailer (L trailer, T trailer and dolly) and walking around an unloading truck trailer while his co-worker, Mr. Khoroujik was driving the tractor to unload trailers at the Fedex Freight Canada Corp. docks.
While walking in the direction of the T trailer, Mr. Monette found himself close behind a tractor truck backing up. He was in the path of the tractor truck and was run over by its right rear wheels. Performing the said task constitutes a danger and resulted in the death of Mr. Monette.
[8] On June 19, 2017, the applicant filed an appeal and an application for a stay of the two aforementioned directions. It should be pointed out that there is no respondent in this case.
[9] A hearing was held by teleconference on July 13, 2017, to allow the applicant to make verbal representations about the application for a stay of the two directions. At my request, the applicant also sent written representations on July 17.
[10] On July 24, 2017, I rendered my decision to deny the application for a stay and the Tribunal informed the applicant and Ministerial Delegate accordingly. The reasons for my decision are presented below.
Issue
[11] Should the application for a stay of the two directions issued by the Ministerial Delegate on May 26, 2017 be granted?
Analysis
[12] The appeals officer evaluates an application for a stay of an instruction applying a three-part test based on the reasons of the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, and adapted to the special nature of the Code’s area of application. This test consists of the following three criteria:
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 denial of the stay will cause significant harm.
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 other person granted access to the workplace.
[13] The three criteria must be fully met by the party filing the application.
Is the question to be tried serious as opposed to frivolous or vexatious?
[14] First, as regards the serious nature of the question to be tried, the applicant submits that the question is serious, since the jurisdiction of the Court to hear the matter is at stake. The applicant suggests that the Code does not apply to this case because there is no employer-employee relationship between the employer and the deceased employee.
[15] The issue of knowing whether both drivers are "employees" within the meaning of the Code is difficult, and a negative response to this question would deprive the drivers of the various protective workplace health and safety mechanisms under the Code.
[16] In the light of the foregoing, I am of the view that the matter raised in this case is serious. Consequently, the applicant has passed the first part of the test.
Would the applicant suffer significant harm if the direction were not stayed?
[17] As regards the significant harm that the applicant would suffer if both directions were not stayed, the applicant claims that it would be immersed in a cumbersome bureaucratic administrative process. The applicant, considering itself a provincial rather than a federal entity, states that it would have to institute proceedings to change its tax practices if the Code were to be applied.
[18] In addition, the applicant states that being asked by the Ministerial Delegate to provide a risk assessment report of the Labour Program does not encourage on-site safety measures, causes stress and unnecessary procedures, and calls for expertise it does not have.
[19] First of all, I wish to emphasize that in an application for a stay, the applicant is responsible for clearly and convincingly demonstrating the impact on the workplace or employer’s operations if the stay is not granted.
[20] With respect, and after analysing its arguments, it appears to me that the applicant has failed to demonstrate clearly and convincingly that it would suffer significant harm if the two directions were not stayed.
[21] The applicant was unable to demonstrate the major impact on its operations if both directions were not stayed. The mere fact that it alleged that compliance with the directions would require administrative changes and cause it stress is not sufficient to meet the second criterion, especially considering the goal and the background against which the two directions were issued to the employer. They were both issued following the death of an employee and one of them orders the employer to take measures to eliminate a hazard to employee workplace health and safety.
[22] I am therefore of the view that the applicant did not satisfy the second criterion.
What measures will be implemented to ensure the health and safety of employees or any other person given access to the workplace if the stay is granted?
[23] In view of my finding on the second criterion, I did not consider the third criterion for the purposes of this application for a stay.
Decision
[24] For the aforementioned reasons, the application for a stay of the two directions issued by the Ministerial Delegate on May 26, 2017 is denied.
Olivier Bellavigna-Ladoux
Appeals Officer
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