2017 OHSTC 19

A) Appellant's submissions

[24] In addition to his own testimony, the appellant presented four witnesses in support of his case. Those witnesses (Krista Steven, Wilma Perkins, Tawnia Moorehouse and Kim Laforest) all work as RSMCs on a variety of delivery routes, none being the same as that which was serviced by Mr. Tretiak. In addition, apart from Ms. Steven who delivers in the Fredericton Depot area, the routes serviced by the others are situated in other New Brunswick regions (Burts Corner and Keswick Ridge).

[25] Ms. Steven testified to having accompanied the appellant to a meeting with his supervisor (Wendy Gibson) on January 15, 2016, to seek an accommodation whereby he would have switched to a vacant route (SS 19) not using a Grumman or be allowed to use his personal vehicle on route SS 50. Such accommodation was denied. In the case of the other witnesses, they all testified to feeling unsafe using a Grumman during winter, that the handling of the vehicle is affected by windy conditions, necessitating constant steering and speed corrections and is difficult in winter, even with sand weight added to the rear wheels.

[26] Ms. Moorehouse while somewhat more detailed reiterated all the points noted by the other witnesses. She noted that the narrower front wheel base of the vehicle affects handling, particularly in winter. The latter and Ms. Laforest both attested to the steering in their vehicle being loose, rendering keeping the vehicle on the road more difficult.

[27] Finally, Ms. Laforest testified to her ergonomic problems recurring every time she has to resume driving a Grumman.

[28] Mr. Tretiak's testimony, although somewhat more detailed, generally reiterated the various elements of his four witnesses' testimony as well as what is generally recounted in the Ministerial Delegate’s report and testimony. He noted that on January 11, 2016, following a near miss that occurred on January 8 where he slid down a driveway onto a lane of oncoming traffic, he sought advice on the refusal process and was, as would be again the case later in the process, discouraged and warned of potential consequences to his employment.

[29] This being said, as a relief RSMC since 2012 and permanent since January 2016, he considers himself a professional driver capable of driving in any season and as a relief driver, meant to be able to drive any Canada Post vehicle in the depot, be it right or left hand drive. That being the case however, particularly following his near miss of January 8, 2016, he indicated he felt that the Grumman was not a suited vehicle for use on route SS 50 and upon returning to work on January 14 (not having worked on January 12 and 13), he chose to refuse to work when informed he would be delivering route SS 50 using the Grumman (the Labour Program was notified of his refusal on January 18, 2016).

[30] He further refused the proposed additional training on January 18, 2016, citing as his reason that he was expecting his complaint/refusal to be fully investigated. He did however accept to receive such additional training once his refusal had been passed on to Labour and the Ministerial Delegate had issued his decision of absence of danger.

[31] He repeatedly noted that his complaint had not been fully investigated internally or by the Ministerial Delegate, his expectation at every step having been that he would have the opportunity to fully explain his position once he had passed on preliminary information, and that in point of fact, the first time he had had the opportunity to fully present his reasons for refusal, including elements that he had not had the opportunity to formulate before because of the reasons just mentioned, had been in the present appeal, in his testimony and various submissions before the undersigned.

[32] Mr. Tretiak's answers to questions by counsel for the respondent and the intervenor served to establish the following. While employed as an RSMC since 2012, he became susceptible to drive a Grumman only starting in February 2014, which is the year such vehicle came into service at the Fredericton depot. As a relief RSMC, he had used only his personal vehicle until that time and during the period 2014-2016, he was on occasion assigned to routes not using a Grumman during the winter of 2014 (required to use a Grumman only for brief periods), never used a Grumman during all of 2015 as the route to which he was assigned was being serviced by a Town and Country left hand drive vehicle, and thus in January 2016, when assigned to route SS 50 and no longer having the Town and Country vehicle at his disposal, Mr. Tretiak had essentially not used a Grumman since almost two years and only a number of times in 2014.

[33] In January 2016, as a result of break-downs, ergonomic problems and/or a near miss incident on January 8, Mr. Tretiak effectively made use of the Grumman only very few times and after January 29, for medical reasons, was assigned to route SS19 where he could use his personal vehicle. That situation lasted until February 21, 2016, when the appellant became a regular/permanent driver permanently assigned (owner) to shorter route SS 21 (not designated as a RHD route) involving less driving and allowing for use of his personal vehicle, meaning that the appellant would no longer be required to drive a Grumman as part of his regular duties.

[34] On the requirement to enter into a vehicle's log book all problems and to report any incident involving the driver and the use of the vehicle, Mr. Tretiak did know of such requirement but only infrequently formally reported those, opting to do so verbally in many instances. His testimony and that of some of his witnesses was that management does not look at log books.

[35] In submitting final arguments, the appellant noted his frustration at getting his point across and, noting that the situation had become somewhat complex, belatedly expressed his misgivings at not obtaining legal representation to assist him in making a clearer and more complete case, in light of the respondent and the intervenor being represented by experienced counsel. This being the case, and since those arguments were submitted in unorthodox manner, I have opted to reproduce those in extenso:

B) Respondent's submissions

[36] As additional evidence provided in testimony, the respondent offered the following information concerning postal route restructuring at the Fredericton Depot. In this regard, it would appear that on or around October 17, 2016, Canada Post implemented a route restructure for RSMC routes, such having been planned for several months and thus well before the appellant's work refusal, with the end result being the reduction from five to three the number of right hand drive routes in the Fredericton Depot.

[37] For the case at hand, this route restructure has meant that route SS50 no longer exists and that all points of call that previously made up that route have now been spread over four separate routes, specifically routes SS 3, 15, 22 and 24, none of those being designated as RHD routes. Furthermore, as part of the said route restructure, the appellant bid on and has now become the permanent route holder of route SS4, which is not a Right Hand Drive route and on which Mr. Tretiak drives his own personal vehicle, not a Grumman LLV.

[38] The respondent's final submissions put forth three points or issues. First, it is the respondent's argument that Mr. Tretiak's appeal should be dismissed on the basis of mootness. Secondly, the respondent submits that the appellant should be restricted from expanding the scope of his appeal. Finally, on the actual merits of the appellant's case, it is the position of the respondent that the facts as presented do not support a finding of ''danger'' as defined at subsection 122(1) of the Code and that in the alternative, should the undersigned conclude to the presence of danger in the use of the Grumman LLV, this should be found as being a ''normal condition of employment''.

[39] On the issue of the scope of the appeal, the respondent's argument is prefaced by the recognition that Mr. Tretiak was not represented by counsel, thereby seemingly showing some acceptance to the appellant's manner of presenting his case. However, the respondent does emphasize that there has been a general lack of consistency with respect to the scope of the appellant's position in the present proceedings. Referring to the various stages of the process, starting with the initial complaint, through the refusal process and then the various stages or parts of the appeal hearing, counsel for the respondent notes that while Mr. Tretiak's initial complaint pertained to his ability to control the Grumman LLV assigned to route SS50 in winter road snow and ice conditions, his refusal registration document stated that the outcome he was after was to not have to use the Grumman LLV on route SS50 in the winter months when there is snow and ice. However, counsel notes that during the refusal investigation by Ministerial Delegate Swann, Mr. Tretiak raised for the first time ergonomic complaints.

[40] As to the appeal hearing per se, the respondent points out that during the site visit that occurred on day one where the undersigned had the opportunity to closely examine two Grumman LLVs, the appellant raised other concerns for the first time, such as complaints regarding the seatbelt and loose mirrors. This was followed, at the beginning of the hearing, with Mr. Tretiak's statement that his issues was Grumman #48321 on route SS50, adding later that he did not want to drive another Grumman LLV ever again without regard to the particular route or time of year.

[41] Counsel for the respondent does however note that during the second part of the hearing following resumption on October 31, 2016, the appellant indicated that his concerns were with the general use of Grumman LLVs on all rural routes in all of Canada while also stating in his written final submission that ''I know I cannot speak for all Grummans everywhere''. The respondent submits that Mr. Tretiak appears to be attempting to advance a collective work refusal for the benefit of his colleagues who themselves have not enacted a refusal to work and who may have even selected a RHD route through their seniority right of selection.

[42] To summarize, counsel notes that while Mr. Tretiak's original work refusal was in relation to the vehicle assigned to route SS50 during winter months and in particular his personal feelings of comfort and/or confidence in his ability to control said vehicle, much of the evidence the latter sought to adduce at the hearing delves into issues that were not brought up in the initial work refusal registration or directly connected therewith, including ergonomic issues that do not relate to controllability.

[43] In arguing that the appellant should not be allowed to expand the scope of his appeal in this manner, the respondent finds support in Schmahl v. Correctional Service of Canada, 2016 CarswellNat 3023, 2016 OHSTC 6, where the Appeals Officer noting that he was acting in a de novo fashion and thus had great flexibility in receiving evidence and information that may not have been available to an HSO being reviewed at appeal, stated that: ''Such evidence however must concern the issue initially raised by the refusal, not an expanding or expanded descriptive of what may, logically, be linked but was never raised ab initio''.

[44] On the issue of mootness, the respondent argues that there presently is or remains no live controversy between the parties, and that the circumstances that gave rise to the work refusal by M. Tretiak no longer exist.

[45] According to counsel, my consideration of this issue needs to be based on the rationale of the Supreme Court of Canada in the leading case on the matter, Borowski v. Canada (Attorney General), 1989 CarswellSask 241, [1989] 1 SCR 342, which stands for the principle that a court (the principle applies also to an administrative tribunal) may decline to decide a case which raises merely a hypothetical or abstract question. That general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

[46] This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceedings, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. Consideration or approach to such an issue involves a two-step analysis, as described by the Court:

To buttress its arguments relative to the particular circumstances of the present mootness issue, the respondent referred to a number of precedents from this Tribunal that have dealt with this issue. Those are Maureen Harper v. Canadian Food Inspection Agency, 2011 CarswellNat 6539, 2011 OHSTC 19; Robert J. Wellon v. Canada Border Services Agency, 2011 CarswellNat 7277, 2011 OHSTC 28; Schmahl v. Correctional Service of Canada, supra, and Gauthier v. Correctional Service of Canada, 2016 CarswellNat 4043, 2016 OHSTC 12.

[47] Applying the pronouncements in these cases to the present, counsel submitted as a preliminary point that although the motion for mootness had been formulated at the hearing viva voce at first, at the conclusion of the appellant's case presentation, the undersigned opting at that time not to decide on the motion until the whole case had been presented by all participating parties, Mr. Tretiak had chosen not to cross-examine respondent witness Nancy Blizzard in relation to respondent's motion to have the matter dismissed on the basis of mootness, opting instead, at final argument stage, to make submissions in relation to points on which there was no evidence, including among others, seniority and details in relation to future route restructures, points that could have been put to the said witness. Counsel argues that those submissions by Mr. Tretiak should be given no weight under the circumstances. As to the particular circumstances of this case that would lead to a finding of mootness, the respondent puts forth the following.

[48] Before being implemented on October 17, 2016, the Fredericton Depot route restructure previously mentioned had been planned for many months. It resulted in route SS50 no longer existing and the points of call that made up that route being apportioned to new routes (3, 15, 23 and 24), none of which being right hand drive routes, meaning that RSMCs servicing the said routes all use their personal vehicle and none are required to make use of a Grumman LLV.

[49] Mr. Tretiak has now become the permanent holder of route SS4 which also is not a RHD route and thus he services the route with his personal vehicle and is not required to make use of a Grumman LLV. Even considering the possibility of another route restructure at some time in the future, a fact that the respondent admits is a possibility, the latter argues that there is neither evidence, reason or intention to conclude that should this occur, the appellant would be required to drive a Grumman LLV on the same or a similar route.

[50] Adding to this the respondent puts forth that the recent route restructure brought from 5 to 3 the number of RHD routes. Bidding on and assignment of routes is conducted on a seniority basis and as the appellant's seniority will continue to increase, should there occur further route restructuring in the future, the respondent argues that Mr. Tretiak would then have the opportunity to bid on his preferred route based on his seniority, as he did to acquire route SS4 with the recent restructure.

[51] Counsel points out in this respect that other RSMCs may prefer a RHD route and that in the recent route restructure, some with more seniority than the appellant have done just that, something that could happen again in the future. As to the actual characteristics of RHD routes, counsel submitted that those routes are among the longest by their very nature and that where Mr. Tretiak is concerned, when he provided the employer with a medical note that stated that ''driving may need to be limited due to pain'', he was immediately accommodated and put on a shorter route without a RHD requirement.

[52] Furthermore, alluding to the potential for another route restructure, the respondent submits that in the unlikely event that Mr. Tretiak would find himself required to drive a Grumman LLV on a similar route in the future, he would still retain the right to refuse to work under the Code, as would any other employee at the Fredericton Depot.

[53] As to the second part of the Borowski (supra) decision analysis, that which allows for a discretionary consideration of the merits of a case, notwithstanding its mootness, the respondent submits that the undersigned should not lose sight of the difference between a case of great public importance such as Borowski, with the potential of affecting a great deal of persons, and a case such as the present, which needs to be decided in the context of subsection 128(1) of the Code which refers to ''an employee'' and not to ''employees generally'' refusing, such refusal right being an ''irrefutably individual right''.

[54] As such, it is the position of the respondent that the undersigned ought to consider the question of whether to exercise one's discretion to consider the merits of this case through the lens of the work refusal legislative scenario, having in mind that in the Borowski situation, regardless of the great public importance of the issue raised in that case, the Supreme Court opted not to exercise its discretion to hear the case on the merits.

[55] Given the limited impact of the issue raised by the exercise by Mr. Tretiak of his irrefutably individual right, the respondent opines that discretion to decide the merits of said case should not be exercised.

[56] Additionally and even if the factors identified by the Court (adversarial context, concern for judicial economy and adjudicative role) to consider exercising my discretion on the merits were to be applied, the respondent is of the opinion that such discretion should not be exercised for the following reasons: there is no adversarial relationship and no collateral consequences to Mr. Tretiak; with respect to judicial economy and the role of the Tribunal as an adjudicative branch, there is no need to adjudicate an issue that is essentially abstract or academic, nor does this case present special circumstances.

[57] In essence, the respondent offers the opinion that while there may have been basis for raising this question of mootness early on the proceeding in this case, the route restructure discussed above has strengthened the rationale for reaching such a conclusion, particularly considering that in considering mootness, a live issue needs to remain at the time the decision is rendered.

[58] In short on this particular issue, counsel does opine that given there is no live controversy and that the right to refuse is an irrefutably individual right, Mr. Tretiak's appeal should be dismissed on the basis of mootness. A decision on the merits would have no practical effect on the rights of the parties and this case does not present an extraordinary situation in which it would be in the public interest to rule on the matter.

[59] On the merits, the respondent premised its argument that the situation put forth by the appellant did not constitute a ''danger'' as defined by the Code or, in the alternative if it did, that it constituted a normal condition of employment, by passing in review the various definitions of the term ''danger'' through the years ranging from the initial definition in 1984 to the one applying to the present case and which came into force on October 31, 2014.

[60] Counsel additionally referred to the 1978 version of the Code, which did not specifically define the term ''danger'' or ''imminent danger'' but essentially offered the initial basic elements of the definition to come by formulating a refusal to work provision centrally based on the notion of imminence of danger to one's safety or health. The present and thus applicable definition of danger reads as follows: ''danger'' means 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 or condition can be corrected or the activity altered.

[61] It is the opinion of the respondent that whilst the year 2000 Code definition of the term ''danger'' sought at that time to broaden its scope because the previous definition (1984) and provision on refusal (1978) offered a notion that was too narrow, the most recent and current definition ''appears to swing the pendulum back in the direction of the original iteration of danger, once again narrowing the scope''.

[62] Counsel thus points out that the current definition has removed the words ''existing or potential'' that were part of the previous definition, thus suggesting that the hazard or condition must exist at the time of the refusal. Also, removal of the words ''future activity'' is seen by counsel as suggestive of the hazard needing to be existent at the time of refusal, finding support for this opinion in the decision by an Appeals Officer in Welbourne and Canadian Pacific Railway Co., CAO, Decision No. 01-008, which stated, in reference to the pre-2000 definition of ‘‘danger’’, that it had to be present at the time of the safety officer's investigation.

[63] Furthermore, counsel also notes that the new/current definition also makes no reference, as did the previous definition, to injuries or illness which might occur at any point following exposure to the hazard, condition or activities. According to counsel, what is particularly worth noting, as regards the new definition, is the reappearance therein of the word ''imminent'' as qualifier to the notion of threat.

[64] The respondent is thus of the view that the most recent and thus current definition is more restrictive, and at the same time points to governmental comment (Labour Program) according to which, in determining whether a danger exists, an official mandated to investigate a refusal to work must ''assess...whether the hazard, condition or activity in question are reasonably considered either an imminent threat or a serious threat before the hazard or condition can be corrected or the activity altered''.

[65] In brief thus, the respondent offers the opinion that the new definition of danger is similar to the pre-1985 definition and that when one takes into account caselaw from that period (Miller v. Canadian National Railway, 1980 CarswellNat 728), ''imminent danger'' needs to be interpreted as something that is likely to happen at any moment, narrowing therefore significantly the scope of the definition.

[66] As for the specifics of the present case, while the respondent does not agree that the scope of this appeal should be expanded to all Grumman LLVs, it considers worthwhile to review certain historical elements pertaining to this type of vehicle before addressing the appellant's specific concerns.

[67] As such, while CPC has not always had RHD designated RSMC routes, with the mail being delivered with personal left hand drive vehicles for the most part, over the years ergonomic issues and safety concerns arose with the use of such vehicles where mail boxes would be on the right hand side of the road, causing the respondent to initiate a RHD pilot program in 2009 and to acquire 36 vehicles (Jeep Patriot, Town and Country van and GMC Savanna) to test right hand delivery. Said pilot lasted 12 months and resulted in positive feedback. However, at that time, the tested vehicles were no longer available for mass purchase from manufacturers, resulting in the respondent needing to fall back on a number of available fleet Grumman LLVs that were made available to RSMCs as a result.

[68] Being a purpose built vehicle, the Grumman was primarily designed for the United States Postal Service, with a number of those being also sold to Canada, Mexico and several other countries. It is the respondent's view that suggesting that the Grumman was primarily designed for urban use is simply incorrect. Featuring a right-handed driver's position and being known for its overall economic operation, serviceability and handling in confined areas, the respondent describes the Grumman as a commercial vehicle whose characteristics are not those of a personal vehicle, particularly as regards steering and suspension, but not suggestive of inherent safety issues. In point of fact, it is the most common vehicle used by letter carriers for curbside and residential delivery of mail in the USA.

[69] The United States Postal Service has over 100,000 in operation, including in rural settings, such as Maine and Alaska. The Grumman LLV was produced from 1987 to 1994 with an original life expectancy of 24 years and thus, in order to extend its duration, the respondent initiated a refurbishment project
(2012-2014) in consultation with the intervenor, the Canadian Union of Postal Workers (CUPW), which resulted in all Grumman LLVs currently in use by RSMCs, including #48321, being refurbished to an extended life expectancy of 30 years. Additionally CPC, in consultation with CUPW, implemented a flat tub retaining system (FTRS) whereby tubs destined to retain a maximum weight (300 lbs) of sand were installed in the back of the LLVs for additional weight/traction in winter conditions. Given the maximum LLV carrying capacity (2700lbs), this put the cargo carrying capacity of the vehicle at 2400lbs and thus no adverse operational or controllability concerns arose as a result of the FTRS implementation and actually would tend to improve vehicle control in case of reduced mail volume being carried.

[70] Starting in 2012, Grumman LLVs were deployed in service with 60 of those being deployed leading up to the winter of 2012/2013. In March 2014, a joint assessment by CPC and CUPW was conducted regarding the use of such vehicles by RSMCs, primarily to evaluate the improvements that had been carried out on said vehicles (FTRS, winter tires) and performance under a variety of winter conditions. Selected by CUPW, the assessment route was designed to encompass a variety of winter driving scenarios, including gravel roads, hilly terrain, slopes, icy conditions and roads with different degrees of curvature, and testing was conducted with and without FTRS. Such assessment confirmed for both sides the suitability of these vehicles for delivery by RSMCs and the appropriateness of the improvements brought to the Grummans. However, where RHD routes for RSMCs are found to require a 4x4 vehicle, as determined by a local representative committee, the route designation is changed to a 4x4 requirement.

[71] On maintenance, the respondent's evidence was to the effect that CPC has an extensive preventative maintenance program wherein all fleet vehicles are subject to thorough mandatory preventative maintenance inspection (PMI) conducted by a licenced mechanic and intended to ensure all maintenance issues are identified and corrected in timely fashion.

[72] Additionally in New Brunswick, Grumman LLVs are required to pass an annual provincial motor vehicle inspection (MVI) performed by a licenced mechanic. Such mechanic for the Fredericton Depot is Everett Car Care, whose representative (Ryan Everett) testified that he has been consistently instructed to make any and all repairs necessary to ensure CPC vehicles are safe and to equip Grumman LLVs at Fredericton with new winter tires at the beginning of each winter season.

[73] On the conveyance of the necessary information to have repairs done, the respondent's evidence, as argued by counsel, is that CPC employees are required to complete a daily-trip inspection of their vehicles, with identified defects being brought to the attention of a supervisor, verbally and also by completing the required Driver's Vehicle Defect Report. Counsel argued that while Mr. Tretiak may have testified that supervisors do not review vehicle log books, where historically such defects were noted, and where very limited information is kept nowadays, such defect reports are not kept or left in vehicle log books and need to be passed on to a supervisor when completed, with supervisors directed to have vehicles serviced as soon as informed of a maintenance issue. Furthermore, contrary to what had been suggested by the appellant, the respondent's evidence was to the effect that only new or refurbished parts (equal in quality to new parts) are used to effectuate repairs on Grummans.

[74] The respondent also submits that it has a number of mandatory safety policies. Most noteworthy among those are the Service Adjustment-Adverse Weather (1202.18), Hazards and Impediments to Delivery on Route (1202.05) and the Rural and Suburban Mail Carrier Delivery (RSMC) Safe Work Procedures policies. Those policies are applied at the Fredericton Depot. In particular, when warranted by weather, mail delivery is suspended. Furthermore, if an employee encounters a hazard or impediment, including one caused by winter weather conditions, such as snow and/or ice when approaching a rural mail box, and feels that he or she cannot deliver the mail safely, their instruction is to avoid the situation and report it to a supervisor. From a general standpoint, counsel submitted that great emphasis is placed on safety at the Fredericton Depot which has been recognized for its excellent performance in this regard.

[75] Addressing the appellant's specific concerns, the respondent noted that LLV #48321 had been refurbished prior to being deployed and that upon review of its maintenance history had been considered to be a normal vehicle with a normal history record. As per the evidence, the vehicle had been sent to Everett's Car Care on January 12, 2016, had passed a PMI and a provincial MVI, was in good working order at the material time and had new winter tires installed. As for route SS50, it had not been designated as a 4x4 route and no complaints had been raised about the characteristics of the said route or the suitability of a Grumman LLV on such by the route holder that preceded the appellant or from the individual who filled in to deliver on said route following Mr. Tretiak's refusal to work.

[76] Furthermore, it is the position of the respondent that the evidence submitted by the appellant does not support a finding of multiple near misses and breakdowns. More specifically, while Mr. Tretiak stated that he had multiple near misses, on cross examination he conceded that he only drove a Grumman LLV in 2016 on two days, and on those days only for a short portion of route SS50. Before that his experience in a Grumman LLV had been limited to a handful of times in 2014, this making it unlikely that he had the opportunity for multiple near misses. Similarly, there were limited opportunities for ''breakdowns''. On cross examination, the appellant explained that he considered a failure to start at the beginning of a shift as a ''breakdown''.

[77] The respondent has argued that the appellant raised a number of concerns or issues at the hearing that, in its opinion, would seem to exceed the original scope of the work refusal. Among those would be some concerns relative to the design of the vehicle. The respondent has nonetheless opted to address those in its submissions, albeit briefly.

[78] On the issue of ''loose seat'', the latter argues that the seat in a Grumman is designed to pivot and thus some movement is necessary, and where the vehicle's seat is checked as part of the PMI and MVI and passes, it is safe. Such small amount of movement does not translate into ''danger'' under the Code.

[79] The appellant has raised ''steering play'' as a concern, and contrary to the latter's claim, the Grumman does have power steering. However, the LLV being a commercial vehicle, and thus not different from other commercial vehicles, its steering differs from that of a personal vehicle. Excessive ''steering play'' would prevent the vehicle from passing the employer's PMI or the provincial MVI. The steering on the Grumman LLV is/was as it was designed to be and thus does not represent a ''danger'' as per the Code.

[80] Regarding the ''rear wheel drive'' characteristic of the Grumman, the respondent notes that this is the case for about 50% of CPC's fleet of vehicles. This entails handling that is different from a front or four wheel drive vehicle. That fact however does not make it a danger as defined by the Code. It is the respondent' submission that RSMCs are professional drivers and are expected to drive appropriately for the conditions and comply with the safety policies, which provide for winter weather conditions. Not unlike other elements previously mentioned, the ''suspension'' on a Grumman is similar to other commercial vehicles or trucks and thus is not expected to run as smoothly as a personal vehicle. The respondent is of the view that a rougher ride does not make the vehicle a ''danger'' under the Code.

[81] As for ''handling'', the respondent's evidence is that the Grumman being a light weight delivery vehicle, it handles similarly to other light weight or large volume delivery vehicles, including in windy conditions, and that wind resistance has not been identified as a safety problem for that vehicle.

[82] With respect to the narrower front wheel base of the Grumman, testimony was to the effect that such design characteristic was to allow the vehicle a tighter turning radius and that factors such as wind and the narrower wheel base should not result in loss of control, which is essentially caused by a combination of speed and driving, regardless of conditions.

[83] As for corroboratory testimonial evidence presented by the appellant, it is the respondent's submission that it should be given little weight due to the different vehicles (albeit Grummans) used by these witnesses, the different routes serviced and the fact that when they had the opportunity to bid on non-RHD routes upon route restructuring due to their seniority, they opted to re-bid on routes to which Grumman LLVs were assigned.

[84] Generally speaking, neither the Director of CPC fleet nor CPC's General Manager of health and safety testified to any awareness of persistent or systemic mechanical or safety problems or issues with the Grumman LLV, although if this were the case, they would be made aware of such in a variety of ways. CPC statistics indicate that a CPC employee is five times more likely to be in a collision in one of CPC's other fleet vehicles. In the case of the intervenor, CUPW has not raised any systemic safety concerns regarding the Grumman LLV and it has not questioned the appropriateness of its use by RSMCs. It did raise the lack of consistency in FTRS installation in the initial stages but this was addressed and corrected and has not been the subject of any further concern by the intervenor.

[85] As to the ergonomic issues or the ''daytime running light'' safety alert raised by the appellant in support of his claim of danger, the respondent notes that while the appellant did testify as to his back pain, he failed to provide any evidence of ''ergonomic'' issues with the Grumman LLV. Furthermore, no such issues were ever raised by intervenor CUPW nor any ergonomic assessments on the Grumman ever sought by the latter. As to the matter of the daytime running light alert, while recognizing that such an alert was indeed issued, this was in relation to a single fire incident with no reoccurrence.

[86] Summing up, the respondent submits that the appellant has failed to identify 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 or condition can be corrected or the activity altered. The appellant is a professional driver, using a mechanically sound large cargo vehicle, and neither his personal feelings toward LLV #48321 specifically or Grumman LLVs generally, nor his ergonomic complaints about the vehicle, constitute a ''danger'' under the Code. Even if there was a ''danger'', a conclusion not conceded by the respondent, the latter submits that in the circumstances established for this case, these would represent a normal condition of employment, in which case refusal to work is not permitted under the Code, with the respondent finding support for this in the Tribunal and Federal Court case law, more specifically Morrison and Canada Post Corp., 2009 CarswellNat 6830, Decision No.: OHSTC-09-032; and P & O Ports Inc. v. ILWU, Local 500, 2008 FC 846.

C) Intervenor's submissions

[87] At the outset, the intervenor generally describes the appeal by Mr. Tretiak as raising two general areas of concern in respect of the Grumman LLV, those being deficiencies in the ability of the vehicle to handle roads covered with ice, snow or rain and roads in poor condition as well as ergonomic issues and hazards. It also premises its submissions by noting that as intervenor, it had been granted the right to cross-examine witnesses called by the other parties and to make final submissions, thus being prevented to call witnesses of its own.

[88] In this respect, the intervenor notes that the appellant has made various claims about the conduct of CUPW and attributed certain statements to CUPW representatives and officials. It makes the point that such claims and attributions would be irrelevant to the disposition of this matter and that considering its limited role in this matter, it would be unreasonable and unfair for the undersigned to rely on the appellant's assertions in respect of CUPW representatives.

[89] From a general standpoint, the position adopted by the intervenor regarding this appeal can be reduced to the same two points made by the respondent to wit, that the appeal should be dismissed because it has become moot as there is no longer a live controversy to be resolved by a decision on the merits, and because the appellant has not established that the use of the Grumman LLV for the purposes of mail delivery by an RSMC constitutes a ''danger'' within the meaning of the Code.

[90] In support of these findings, the intervenor has summarized the facts in essentially the same manner as the respondent and has essentially formulated submissions that are to the same effect as those of the respondent, thus rendering a summary of such as rather repetitive and somewhat unnecessary in the circumstances.

[91] That being said, on the mootness question, the intervenor has pointed out that the appeal of the no danger finding by the Ministerial Delegate was launched solely by Mr. Tretiak, with no other RSMCs intervening in the proceeding, with the initiating work refusal being based solely on Mr. Tretiak’s individual circumstances that no longer exist. This leads the intervenor to offer a conclusion that this case represents a clear case for the application of the mootness doctrine, a contrary finding being wholly inconsistent with the bulk of the Tribunal case law.

[92] On the second part of the mootness doctrine regarding the need for extraordinary circumstances to be present rendering in the public interest the discretionary intervention of the Tribunal on the merits, the intervenor submits that the instant case does not present such extraordinary circumstances and that there is no evidence before the Tribunal that a decision in this matter is necessary.

[93] On the potential decision by the undersigned to proceed to consider the issue of ''danger'', the intervenor, in addition to the same submissions as the respondent, argues that the Grumman LLV has been in use at CPC in the urban setting since 1998 and in the suburban and rural setting since 2012, and that as such, there is simply no evidence related to CPC utilization that would support the conclusion that the vehicle is a danger. The intervenor suggests that the Tretiak refusal appears to have been the only CPC situation that has required the involvement of a Health and Safety Officer, that there is no documented history of issues in respect of the use of the Grumman LLV in winter conditions, and that there is no data that would support the conclusion that the Grumman LLV is less safe than other vehicles operated by CPC. It is the claim of the intervenor that statistical evidence is to the effect that a CPC employee would be substantially more likely to have an accident in another vehicle.

[94] On the ergonomic issues, the intervenor adds to the respondent's submissions that the case law is to the effect that an employee bears the onus of producing medical evidence supporting a claim that the work is a danger, such evidence not having been produced, short of a brief medical note suggesting less driving, the onus therefore not having been satisfied. Furthermore, it is noted that the appellant's claim for Workers Compensation benefits was denied due to his failure to produce additional information to support the claim. It is proposed by the intervenor that Mr. Tretiak's claim of ergonomic danger is undermined by the fact that he did not drive the vehicle after January 28 and never determined whether there were available steps to limit possible ergonomic impacts, such as seat padding or the use of an ''obus form'' type device. It is submitted that there was no documented history of the Grumman LLV causing ergonomic problems presented in evidence, although there are 1600 Grumman LLVs used by CPC employees on a daily basis.

[95] The intervenor is thus of the view that the appeal should be dismissed on the basis that it is moot and that no extraordinary circumstances make it appropriate for the Tribunal to issue a decision on the merits. Alternatively, there is insufficient evidence to support a finding of danger.

D) Reply

[96] As stated at the outset by the undersigned, the appellant has been unrepresented throughout these proceedings. As a result and because of the latter's lack of experience, Mr. Tretiak was afforded much leeway regarding the manner of presenting and even the substance of his evidence, the understanding of all parties being that the Tribunal would sift through it all and give proper weight and relevance where due, this within the proper scope of the appeal.

[97] I reiterate this at this stage in light of the reply offered by the appellant where the latter essentially exceeds the boundaries of a proper reply and does appear to offer new evidence and formulate new or expanded issues that may modify the scope of the case. Having put this caveat in place, I have nonetheless opted to reproduce at length the text of the appellant's reply, if for no other reason than to adhere to the position formulated at the outset that I would, with the cooperation of all concerned, allow the inexperienced appellant full opportunity to voice his case.

[98] Mr. Tretiak's reply thus reads as follows: