2017 OHSTC 19

Date: 2017-09-06

Case No.: 2016-03

Between:

William Tretiak, Appellant

and

Canadian Union of Postal Workers, Intervenor

Indexed as: Tretiak v. Canada Post Corporation

Matter: Appeal under subsection 129(7) of the Canada Labour Code of a decision rendered by an Official Delegated by the Minister of Labour.

Decision: The decision is rescinded.

Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision: English

For the appellant: Himself

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

For the intervenor: Mr. David Bloom, Cavalluzzo Shilton McIntyre Cornish LLP

Citation: 2017 OHSTC 19

Reasons

[1] This concerns an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) against a decision that a danger does not exist rendered on January 25, 2016, by Joseph S. Swann, an Official Delegated by the Minister of Labour (Ministerial Delegate). That decision by the Ministerial Delegate came at the end of the latter's investigation into the work refusal registered on January 18, 2016, by the appellant, Mr. William Tretiak, a rural suburban mail carrier (RSMC or relief driver), attached to the Fredericton (N.B.) Canada Post Corporation (Canada Post or CPC) depot, relative to the latter's use and operation of an assigned Grumman Long Life Vehicle (LLV) right hand drive (RHD) vehicle (#48321) in performing mail delivery on route SS50, a route comprising urban, highway and rural road delivery segments.

[2] As indicated on the title page of this decision, the appellant represented himself through the appeal process while the opposing party and the intervenor were represented by experienced counsel. It became rapidly evident through the preparatory procedural steps as well as in the actual initial stages of the hearing that Mr.Tretiak was wholly inexperienced in the actual hearing process and usual rules governing administrative justice and the presentation of evidence and legal arguments.

[3] In order to facilitate the actual progress of the hearing, I indicated to the appellant as well as to both counsel that I would endeavour to facilitate to the extent possible and without breaching basic rules Mr. Tretiak's delivery of his case and sought and obtained from counsel their cooperation in this regard.

[4] Furthermore, as a result of certain warnings allegedly proffered to the appellant in the early stages of his work refusal by a source that need not be identified here, as no corroborating evidence was provided in this regard, that his refusal action could have consequences on his employment with Canada Post, the appellant sought and the undersigned gave the latter confirmation that the exercise of such refusal rights is protected under the Code. In addition, counsel for the employer as well as counsel for the intervenor provided the appellant with the same assurances. Additionally, it needs to be noted that all the witnesses presented by the appellant sought and obtained the same assurances from the undersigned as well as from counsel for the other parties.

Background

[5] In formulating the decision of absence of danger being appealed, the Ministerial Delegate indicated in his investigation report having established the following facts:

The appellant employee had been using another vehicle (Dodge Town and Country left hand drive) on route SS50 for approximately 11/2 year prior to the Grumman (#48321). Since that vehicle belonged to another region (Oromocto) and had to be returned to its original site, Mr. Tretiak was required to use Grumman #48321 on his route as this vehicle was normally assigned to the said route;

Due to a near miss while using the Grumman, ODML Swann indicated that the employee had anxiety when operating the vehicle and did not feel that he has 100% control when operating it;

All employees receive training on this type of vehicle;

The vehicle had been inspected by an outside service provider (Everett Car Care) and no mechanical or safety issues had been identified;

No concerns had been raised as to the operability of the Grumman #48321 based on statements received from Duncan Gillis, PEI/NB Driver Trainer, Marc Gaudet, Area Superintendant and Kevin Saindon, Letter Carrier Supervisor;

Additional training on the Grumman vehicle had been provided to the appellant by the Driver Trainer; and

Discussion between ODML Swann and the Health and Safety Manager did not indicate that complaints had been received regarding the Grumman vehicle.

[6] In his testimony at the hearing, the Ministerial Delegate indicated that he works out of the Dartmouth, Nova Scotia office of Employment and Social Development Canada (ESDC) covering all Maritime provinces, and had been employed as a Labour Affairs Officer (OSH) for three years at the time of the hearing, although he had previously worked as an occupational health and safety consultant at the Department of National Defence for 17 or 18 years. He indicated that he had conducted his entire investigation into the matter by telephone, including 23 minutes interviewing the appellant, and thus never actually met refusing employee Tretiak, viewed the route travelled by the latter in his rural mail delivery or actually saw the specific vehicle (Grumman #48321) used by Mr. Tretiak for that purpose.

[7] The Ministerial Delegate did state in testimony that Mr. Tretiak had never mentioned a specific vehicle or specify that he always used the same vehicle. The Ministerial Delegate indicated in testimony that he had learned from the appellant that the latter, who had been deployed to the same Fredericton Canada Post location for 4 years, had used a Grumman vehicle on different routes when he had first started as a relief RSMC driver, that within the Fredericton area, five routes are designated for use of a Grumman delivery vehicle, that Mr. Tretiak had been assigned to route SS50 (using the Town and Country vehicle) between August 2015 and January 2016, which is when a Grumman was reassigned to that delivery route and which marks the time of the latter's work refusal. According to the Ministerial Delegate, Mr. Tretiak’s concerns with the vehicle, outside of ergonomic issues, related essentially to use of the vehicle during winter months although the vehicle was outfitted with winter tires and the drivers instructed to by-pass driveways and road-side mail boxes perceived to present a risk due to road conditions.

[8] In his testimony, the Ministerial Delegate did indicate that in his interview of the appellant, Mr. Tretiak had only raised the issue of his comfort level in using the vehicle, that he had not raised an issue with mirrors, seat belts, day running lights representing a fire hazard, nor did he provide any detail or description as to the alleged near-misses or specifics as to particular road hazards or conditions.

[9] The Refusal to Work Registration form that served to initiate Mr. Tretiak's formal refusal action is part of the Ministerial Delegate’s report and describes in ample detail what was described in the internal health and safety committee investigation report/hazard report as the employee not feeling ''in control of the Gruman (sic) right-hand drive vehicle assigned to his delivery route''. Cited at length, it provides in his own words a complete picture of the issue raised by the appellant both at the investigation stage as well as through his testimony, and to some extent, that of his witnesses at the hearing:

When I use the ''Gruman'' (sic) corporate vehicle to deliver route SS50 during the winter months I feel unsafe. The increase in amount of hazards adds to the stress of not being able to meet my production targets of delivering the route safely and completely.

I am aware that I am a professional driver and required to navigate various driving scenarios in a safe and effective manner. I enjoy working for Canada Post and love my job as a RSMC, and I am fully capable of completing any duties when I feel safe in the equipment provided. It is only in the ''Gruman'' during the winter months with ice and snow that I feel unsafe and unable to complete my duties.

The outcome I am looking for by addressing my safety concerns is to come to an agreement with management that I do not have to use the '' Gruman'' (sic) on this route in the winter months when there is ice and snow. If I cannot be accommodated with an alternative corporate vehicle or an alternative route, I would like permission to use my personal vehicle.

My current route usually has a Dodge (corporate vehicle) Town and Country right hand drive minivan. On multiple occasions, my corporate vehicle has been replaced with a ''Gruman'' (sic). Multiple times while operating the ''Gruman'' (sic) during winter months I have lost control of the vehicle and experienced near miss accidents. Each near miss was reported to my supervisors. Near misses occurred while driving on the road delivering to roadside mail boxes, entering or exiting driveways when using the ''Gruman'' (sic). I do not feel I can remain in control of the vehicle 100% of the time I am behind the wheel. Near misses have occurred while traveling at or below 50 km/hr and while starting or stopping the vehicle. I have raised my safety concerns many times with my supervisors and have been told of their experiences of driving the ''Gruman'' (sic) and feeling unsafe as well. (...) [One needs to point out that this statement by Mr. Tretiak was not corroborated by testimony from said supervisors who noted that the appellant had not used the established incident reporting procedure.]

With my multiple experiences of near miss accidents and potential for injury to myself and the public I have no confidence in my ability to be in control of the vehicle 100% of the time. While trying to refuse the vehicle for my personal safety, I was repeatedly told I would need to take the vehicle out on the road before I can feel unsafe. On Monday Jan. 11, 2016 after attempting to refuse to drive the ''Gruman'' (sic) I was told to make an attempt. At this point I became very stressed, overwelmed, had shortness of breath and dizzyness which turned into a full blown panic attack. The thoughts of operating the ''Gruman'' (sic) and putting my personal safety at risk cause (...) me great stress which leaves me unable to perform my duties. It is a psychosocial hazard that carries with me out of the work place and into my personal life as well.

While using the Dodge Town and Country to perform my duties, I have 100% control of the vehicle at all times and at no point do I feel unsafe or at risk. It has modern safety equipment, in other words (...) and power steering.

(emphasis added)

[10] Following the Ministerial Delegate’s decision on his refusal, Mr. Tretiak accepted the additional training that had been previously proposed and filed with the Tribunal an application to appeal that was accompanied by a somewhat lengthy statement of his motivation to appeal. In reading this document, one cannot escape the impression that at the appeal stage, the scope of the issues the appellant may have had with the Grumman vehicle seems to be widened to some elements or characteristics of the vehicle that may not have been raised initially or that do not transpire as having been raised with the Ministerial Delegate and thus may not be properly examined on appeal. That statement of appeal reads as follows:

(...)

I am writing to appeal the decision ruled on [M]onday January 25 by Joseph Swann that the ''Grumman'' corporate vehicle is suitable and safe for operation on route SS50 at the Canada Post depot at 203 Waggoners Lane in Fredericton N.B.. I feel compelled to appeal this decision based on the investigation findings including par. 5 e) statements received by Duncan Gillis, Marc Gaudet, and Kevin Saindon. These are all staff who drive the vehicle from point A to point B in a supervisor or management role and not on daily operations for an entire route. I feel interviews with staff who operate the Grumman on a regular basis for rural mail delivery to homes and road side boxes would prove there are serious concerns with the e[r]gonomics of the Grumman design and ability to handle rural roads with ice, snow, wind, rain and poor road conditions. There is a big difference between a 20 minute or 2 hour drive from one point to another and a 4 to 6 hours making 200 to 300+ stops along a rural mail route. I believe navigation of the Grumman along these rural routes in the winter can be a psychosocial hazard and must be investigated completely.

Also with regards to par. 5 g) with [there] being no complaints made in respect to the vehicle. This is completely untrue. I have made previous complaints and have witnessed my coworkers making complaints and attempting to enact their right to refuse. At these times it was verbal hazard identification and the response was to take the vehicle out until we felt unsafe then return to the depot and continue our route with our personal vehicle. After being met with frustration and indifference from management and union reps at our depot I feel an outside investigation must be done to ensure the safety of myself and my coworkers.

I also believe there are ergonomic hazards present while operating the Grumman. The driver's seat is loose and shakes from side to side while driving. There is no power steering and the wheel has a lot of ''play''which requires constant adjusting while driving, the back rest of the seat cannot be adjusted. One of these issues or all of these issues combined give me a burning pain between my shoulder blades and back when I use the Grumman for delivery. I have seen a medical professional with regards to the pain and was recommended to limit my driving to prevent injury.

Please look into this vehicle with a more in depth and visual inspection while it is in operation on the work routes. (...)

(emphasis added)

[11] At the outset of the hearing, I indicated that in light of the special circumstances of this case, it would be of benefit to the undersigned to take a view of a Grumman LLV to gain a better understanding of the issues raised by the appellant regarding the said vehicle.

[12] This occurred in two separate stages where first, at the Fredericton Depot, two such vehicles were made available for examination, and secondly, at a later date during the hearing and upon request from the undersigned, I rode as passenger in a Grumman LLV through a major part of the appellant's SS50 delivery route, experiencing urban, highway and rural road delivery segments of the said route.

[13] The stationary part of the vehicle's examination showed the Grumman as a working vehicle with little comfort, no insulation, air-conditioner, with the single swivel seat (except for a training vehicle) having no adjustable back rest/support and a front wheel base narrower than the rear wheel base.

[14] Of considerable interest to the undersigned also, given the claims made by the appellant, was the modification made to the rear compartment of the LLV in the form of baskets over the rear wheels to accommodate the placing of 300 pounds of sand weight to improve traction and handling of the vehicle in winter. The demonstration in the moving vehicle on the various delivery segments of the route evidenced a very noisy vehicle, the steering of which needing to be continuously corrected by the operator assigned to the task and where the vehicle handling is seriously affected by meeting oncoming traffic, particularly large vehicles at speed to the point of the operator needing to reduce speed.

[15] The appellant had suggested that such road demonstration would prove even more instructive should it occur during winter months and in winter driving conditions. However, this would have meant delaying the continuation of the hearing for many months and the undersigned determined that this would not be necessary.

Issue

[16] The issue to be determined in this appeal obviously relates, in general terms, to the use of a vehicle referred to as a Grumman LLV (right hand drive) in the delivery of mail. However, to properly define the issue at hand, one cannot ignore the description made by the appellant, at the various stages of the process, of the health and safety issues, the ''danger'', to use the terminology of the Code, that the latter has put forth as justification for refusing to work.

[17] In this respect, one cannot ignore that at the time of his refusal, Mr. Tretiak had been using Grumman LLV # 48321 and that the vehicular issues and incidents that the appellant has claimed as justifying refusing to work relate to his use of that particular vehicle. Having regard to this, the appellant did state in his initial refusal statement that '' It is only in the ''Gruman'' (sic) during the winter months with ice and snow that I feel unsafe''.

[18] In his investigation report and at the hearing, the Ministerial Delegate did mention that the appellant had previously to the time of his refusal used a Grumman vehicle on a number of occasions, but there is no indication as to whether the Grumman used was the same as the one involved in the events that led to the refusal (#48321). Testimony given at the hearing regarding the appellant's use of a Grumman LLV showed that while the appellant had been working at CPC since 2012, his use of such vehicle over the years until his refusal to work amounted to a handful of days in 2014 and, on January 7 and 8, 2016, for partial completion of route SS50 and on January 28, 2016, where upon completing delivery of the entire route, the appellant reported an injury on duty due to the seat and steering hurting his back and neck, resulting in his being assigned on February 2 to a shorter route allowing use of the appellant's personal vehicle until February 21, 2016. On February 22, 2016, the appellant became a permanent route holder and was assigned to route SS 21 which, not being a RHD route, allows for the use of one's personal vehicle.

[19] In his statement of appeal, on the other hand, Mr. Tretiak did appear to expand somewhat on the scope of his reasons for refusal by referring to ''concerns with the ergonomics of the Grumman design and ability to handle rural roads with ice, snow, wind, rain and poor road conditions''.

[20] As to the ''ergonomics'' aspect of the cause for refusal, the testimony given by the Ministerial Delegate at the hearing did indicate that such issue was at least raised by Mr. Tretiak in the course of his investigation into the appellant’s refusal. As it is the decision of the Ministerial Delegate that comes under appeal as opposed to the notification of refusal to work by Mr. Tretiak, it is thus all the elements that came under consideration by the Ministerial Delegate that are concerned by the appeal, including those concerning what has been described as the ergonomics problems allegedly encountered by the appellant.

[21] This being said, quite possibly as a result of the appellant's lack of experience, the latter did at various times through the hearing refer to other aspects relating to the vehicle as representing a hazard, such as seat belt, loose mirrors, driving lights and even the general use of any Grumman LLV on any rural route in the country. At the very least, it is definitely unclear as to whether any of those matters were ever raised by the appellant ab initio or before the Ministerial Delegate.

[22 ] It is true that as Appeals Officer, proceeding in de novo fashion makes it possible to receive evidence and information that may not have been available to or considered by the Ministerial Delegate investigating the employee's refusal or, to a certain extent, the workplace committee conducting the initial examination of the case. This however does not make it possible for the undersigned to consider elements that relate to an expanding or expanded descriptive that would result in the alteration of the substance of the refusal.

[23] Consequently, I am thus of the view that elements that surface, from any source, for the first time during the appeal process and hearing are thus outside the scope of the appeal. On the other hand though, I am of the view that when the matter is considered in its entirety, the essence of the refusal concerns the use of a Grumman vehicle by the appellant and, recognizing that in the immediacy of the refusal, the appellant had been using vehicle #48321, I consider the issue to be determined through this appeal as being whether the use of a Grumman LLV at the time of the refusal to wit, in the winter, and in the conditions under which it was being used by the appellant, represented a danger to the appellant within the meaning of the Code.

Submissions of the parties

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:

I identified health and safety issues with the Grumman corporate vehicle supplied by Canada Post. Canada Post trained me to recognize, identify and report these hazards. I filed my work refusal when I was assigned Grumman #48321 to service route SS 50, however my concerns reached to other Grummans on other routes. I issued my work refusal because I found the vehicle acted unpredictable and was difficult to control during the winter months. I experienced multiple near misses between 2014 and 2016 (loss of control, sliding and bumping into line of traffic). Also I had back pain when using the Grumman, I believe this pain was caused by a loose and shaky drivers (sic) seat, loose steering, poor suspension or a combination of all. In my attempts to address these health and safety concerns, 1) I was denied my initial request to use my right to refuse.-a panic attack resulted (I have no history of panic attacks), 2) I was told I could not outright refuse to use the Grumman and an attempt must be made, (local union president Desmond Downey) I was repeatedly requested to make an attempt with the Grumman, even after my work refusal had been issued. 3) I was told I could be ''health and safetying myself out of a job (regional Union Rep. Rob Garnier), 4) I was completely left out of the internal investigation, where the investigating parties did not even look at the Grumman vehicle I raised issue with. 5) I was abandoned by any CUPW representation. I was told by Toni MacAfee (regional Union Rep) that there was evidence collected that supported my position and that the Union had my back. After the limited intervenor status was granted, I was left on my own. 6) I was made to feel alone in my health and safety concerns. Supervisor Wendy Gibson saying ''there are 6000 on the road and everyone loves them''. I knew I was not alone in my concerns, through sharing conversation with fellow employees of their similar experiences of loss of control. If other employees met this type of resistance when raising health and safety concerns, it is understandable no other work refusals have been filed. Who can I turn to for help when I am met with this type of resistance? How is Nina Mankovitz able to know if there are persistent health and safety concerns with these vehicles if Canada Post Supervisors in unison with CUPW are suppressing the health and safety concerns raised by their front line employees?

I believe that I was putting myself into danger by using the Grumman to deliver route SS 50, it hurt my back (ergonomic hazard) I could not remain in control of the vehicle at all times (psychosocial hazard). I never experienced any issues (loss of control or pain) while using the Town and Country. (sic) I used to deliver route SS 50 during the winters (sic) of 2015. My route had traffic from a gravel pit as well as traffic from a lumber mill. Loss of control in the wrong place could have deadly consequence. I was one person raising the issues I was experiencing. The response I received was as if I were trying to say all Grumman vehicles were unsafe everywhere. I know I cannot speak for all Grummans everywhere. I can speak to my experience using Grummans, and I will continue to do so. If by having my case investigated, the result is that more safe operating practices need to be implemented, that should be seen as a good thing. Testimony given by Ted Tebele gives credit to my position that these Grummans are not safe or suited for delivery on some rural routes. Mr. Tebele testified that prior to rolling out the Grummans to rural routes there was a pilot (sic) project done to see if right hand drive vehicles (in general) were suitable for rural mail delivery. This pilot (sic) project was one year long, with approximately 32 newer 2008-2009 module Jeep Patriots and Dodge Town and Country vehicles. There was a third party observer and monthly follow up was done with the drivers using these vehicles to deliver mail. The pilot (sic) project was considered to be a success but because of supply issues, Canada Post could not purchase those types of vehicle. As a result, they refurbished Grumman LLV vehicles (some that had already met their 20 year life expectancy) until 2014, they repurposed them out into rural routes for their first time in Canada (used for urban delivery prior to 2012). They did no testing until 2014, two years after they had rolled out the initial Grummans in 2012. They tested them for 2 days on 2 routes, part of the testing was to observe if their sand tub retaining system was successful in making the Grumman easier to control on ice and snow. To me, this shows that Canada Post recognized an issue with using the Grummans during winter and their response was a ''band aid solution'', to throw some tubs of sand in the back to give it better traction. I feel we deserve better than ''band aid solutions'' for structural problems. From the 60 Grummans first rolled out in 2012, there are now over 600 servicing rural routes. Canada Post has invested heavily into refurbishment of these vehicles and I can understand them wanting to protect that investment. However the concerns of the front line employees using these vehicles must be listened to. The general consensus amongst the route holders and relief employees who drive these vehicles is that they are unsafe to be on rural roads and especially unsafe during the winter months. I was always told if I came across a dangerous area of my route, to bypass that area and report to my supervisor. This is a flawed safe work procedure because it assumes you identify all dangerous areas before you encounter them. When driving hundreds of kilometers each week and making thousands of starts and stops each week, it is necessary to have equipment that can handle all conditions at all times. For the health and safety of the front line employees who use this equipment, it is necessary that this equipment protect the employees from harm if an accident does occur. There are management of Canada Post who expressed their health and safety concerns with using these vehicles, the employees have been sharing their experiences of loss of control and dangerous operation of the Grummans. This conversation will continue to grow louder and larger with time and I hope action is taken before a Canada Post employee or member of our community is injured or killed by one of these Grummans.

Please put health and safety first. Protect the employees and community who encounter these vehicles on a regular basis. From everything I have described above, I believe this case to be extraordinary, and no action or a decision of moot could have serious costs to society. If a decision of moot is ruled, the costs could be dire and may encourage Canada Post to continue to deny rights and not follow standard work refusal procedures in the future.

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:

First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

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:

To try and discredit my testimony and suggest I never experienced any near misses while operating the Grumman corporate vehicles supplied by Canada Post is unacceptable. I did experience near misses. I did report them to my supervisor. I did avoid the areas which were causing me loss of control, to which I was then told I could not avoid the area altogether and I must drive the entire route. From my first experiences through my last, it has been clear to me that the Grumman vehicle is not suited for the job of rural mail delivery. They are unpredictable, unreliable and unsafe. I got stuck on flat surfaces, it would bump and slide from side to side, I lost control and 360ing down Lord Rd and Prices Dr., sliding into traffic on Woodstock Rd. I had it break down on route multiple times, all these while only using a Grumman approximately 20 times. My co-workers experiences have been similar as we share our stories with each other in conversation. My supervisors have expressed their feelings of being unsafe driving a Grumman. Aaron Moran testified to that (white knuckling) as well as management who did not testify. I also did not include any relief employees or employees who did not feel comfortable participating in my presentation. Even though it may have helped my case I did not want to put anyone's employment in jeopardy. I may not have presented my case in a complete and professional way, but it is simple. I tried to raise a health and safety concern and my right to refuse was denied. I suffered a panic attack at work. Management knows of the employees dangerous experience using these vehicles but through insisting the employees make attempts they can have us push our limits and when we end up in unsafe positions it is our fault for making the attempt and not avoiding the dangerous hazard.

I did seek advice from my doctor after the panic attack. I did not submit a note to Canada Post because I was never required to in the past. She said my body went into flight or fight mode and it cost (sic) flight and shut down to avoid the stressful situation. She also suggested if it was continued to be insisted that I use the vehicle and could not separate myself from the situation to try going to the media or social media with my health and safety concern. I do not want to go that route because I believe the proper channels are in place to protect me and I must use them first.

I feel the evidence given by myself, my witnesses and witnesses for Canada Post support my position that the Grumman corporate vehicles are unsafe for rural mail delivery especially in the winter. They were rolled out with no testing, they have expanded their original life span then repurposed them into a rural setting. To rule moot would be to ignore the health and safety concerns raised and would be a complete waste of the resources put into this investigation to date. To limit the information provided by myself and my witnesses would again keep our experience driving Grumman corporate vehicles at Canada Post from being documented. By denying my right to be part of the internal investigation, Canada Post limited the scope of my complaint and limited the evidence I had to present during the two following investigations. Not one person viewed or investigated vehicle [48321] after my work refusal was issued. All parties relied on the fact that the Grumman had passed a motor vehicle inspection to support their position that no danger existed. No one tested vehicle 48321 and its ability to handle the conditions experienced on route ss50. On January 25, Joseph Deann (sic) ruled no danger, on this same day vehicle 48321 was involved in an accident and was thrown into the ditch on its driver side. Because of this accident Canada Post did not bring this vehicle to be inspected for the investigation. It was originally thought that vehicle 48321 had been wrote off (sic) and no longer in service for Canada Post. This was not the case as we learned just prior to the investigation starting in July 2016, that the vehicle was in service in Saint John NB. Instead Canada Post displayed a show case Grumman that did not exhibit any of the wear and tear that vehicle 48321 did.

My rights were not upheld through some of this process and I hope my rights will be ensured in the future. I love my job as an RSMC and I am proud to serve my community wearing the Canada Post uniform. I hope I did not put my career in jeopardy by following what I felt was the right thing to do, and hope I can continue to serve my community for years to come. (...)

Analysis

[99] Basically, when one considers the submissions made by all parties, there appear to be three points that need to be looked at in this analysis to fashion a conclusion to this case, those being the matter of the scope of the appeal, that of whether the matter has become moot and if so whether discretion should be exercised to consider its merits and, finally, whether the facts brought forth support a finding of ''danger'' within the meaning of the Code.

[100] On the first of those points, that relative to the scope of the appeal and whether through the various stages of the proceeding, the appellant can be seen as having attempted to expand the scope of his appeal from what had initially been raised at the refusal to work stage to what was formulated through the hearing and presentation of evidence and finally through final submissions by the latter, the respondent has briefly argued in writing that I should find in the affirmative regarding this issue and provided a number of reference points to support its assertions in this regard. The appellant on the other hand did not specifically address this particular point, although one can probably derive from the language of his reply that he would hold a contrary view. This being said however, I do not consider necessary to deal with this matter in any particular fashion, given the manner in which I defined, in the extensive language above, what I considered to be the proper issue to determine through this proceeding.

[101] As such, my de novo jurisdiction in such appeal proceeding, while affording the undersigned great flexibility in receiving and considering evidence and information, must be exercised relative to the issues initially raised by the refusal and, in my opinion that which is dealt with in the decision by an official that is the subject of the appeal, ''not an expanding or expanded descriptive of what may, logically, be linked but was never raised ab initio''. This, in essence, prevents the continued addition of details and elements through the various stages of the proceeding, and ensures that no party is surprised by additional claims to which it may not have the opportunity to bring response.

[102] The claim of mootness by the respondent and the intervenor, on the other hand, represents an entirely different matter. I have fully considered the arguments brought forth by both the respondent and the intervenor in favour of my finding in the affirmative in this regard and those of the appellant, to which I have taken an interpretative approach in light of the latter's limited understanding of the substantive elements of the mootness doctrine, in seeking a negative response by the undersigned to the respondent and intervenor's claim.

[103] Where the respondent and the intervenor similarly constructed their arguments regarding mootness on the pronouncement of the Supreme Court in Borowski (supra), the situational facts relative to the appellant in particular and the absence of reasons, as described generally by the Court, for the undersigned to exercise his discretion to consider and decide the merits of the case notwithstanding an eventual finding of mootness, the appellant neither challenged the application of the said doctrine in general or to the facts, nor the undersigned's extended jurisdiction to act discretionarily, opting solely instead to characterize my eventual finding of mootness as ignoring the raised health and safety concerns, representing a ''complete waste of resources'' put into the investigation to date, potentially causing society serious and dire costs and potentially encouraging ''Canada Post to continue to deny rights and not follow standard work refusal procedures in the future'', this latest element having been raised by the appellant during the hearing but neither corroborated nor substantiated through a separate source.

[104] The doctrine of mootness is expressed as follows by Justice Sopinka in Borowski (supra):

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The 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. 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 proceeding, 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. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term ''moot'' applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the ''live controversy'' test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

(emphasis added)

[105] As to the second element of the doctrine, that of exercising the discretion to determine the merits, notwithstanding a conclusion of mootness, the Court specified that three factors needed to be considered to wit, the presence of an adversarial context, concern for judicial economy and the need for the Court (in our case the Tribunal) to be sensitive to its role as an adjudicative branch in our political framework, ultimately balancing the degree of public importance of the case and whether it would be in the public interest to address the merits.

[106] In the course of determining the numerous appeals referred to it, the Tribunal has had to address the question of mootness in a number of cases and has thus developed or made its own a number of elements to determine the ''mootness'' question.

[107] First, in Maureen Harper v. Canadian Food Inspection Agency (supra), the Appeals officer characterized the right of refusal as being irrefutably an individual right applying solely to the employee exercising such right. In that case, the decision of mootness was largely based on the fact that the employee who had initially refused to work was no longer in the employ of the employer, meaning that since the employee was no longer exposed to the situation claimed as presenting a danger, there existed no reason to continue with the appeal hearing.

[108] In the present case however, Mr. Tretiak does remain an employee of CPC. He stated however numerous times that he recognized that in his case, he could not speak of ''other Grummans'', which I understood meant that this refusal/appeal case concerned solely his own situation and the circumstances thereto.

[109] In Robert J. Wellon v. Canada Border Services (supra), the finding of mootness by the Appeals Officer was essentially based on the intervening disappearance before the appeal hearing of the circumstances that had founded the existence of the live controversy between the parties ab initio. In that case, the Appeals Officer adopted as his own the pronouncement by the court in Borowski (supra) to the effect that what the court described as an essential ingredient, to wit a live controversy, ''must be present not only when the action or proceeding is commenced'' which in a case such as the present would mean the filing of a refusal to work, but must still be in existence ''at the time when the court is called upon to reach a decision''.

[110] In Tanya Thiel v. Correctional Service Canada, 2012 OHSTC 39, the fact that the refusing employee was no longer exposed to the alleged danger while at work led the Tribunal to conclude to mootness since ultimately, the decision would have no concrete effect on the parties.

[111] Most recently, in Gordon v. Correctional Service of Canada, 2017 OHSTC 8, the Tribunal again found that the disappearance of the circumstances that had given rise to the work refusal meant that the decision would have no concrete effect on the rights of the parties and thus rendered the matter moot.

[112] In the case at hand, the situational facts of Mr. Tretiak speak for themselves. Apart from what has been described as ''a handful'' of occasions in 2014 when the appellant was required to use a LLV in his work, the evidence has shown that Mr. Tretiak drove a Grumman LLV (#48321) on only two occasions in January 2016 (7 and 8) prior to refusing to work, and then on a single occasion following the decision of no danger by the Ministerial Delegate (January 28), before being assigned a different route allowing the use of his personal vehicle and then, through the acquiring of his permanent status and invoking his seniority and bidding rights, he became the permanent holder of route SS21 (February 22) and, eventually through a route restructure where the original route serviced at the time of the ladder's refusal ceased to exist, route SS4, both allowing the use of the appellant's personal vehicle.

[113] While, at the time of this hearing and decision, the appellant may no longer be required to drive a RHD Grumman vehicle in servicing the postal route he now holds, an argument was made that the potential exists for future route restructures whereby the appellant might be faced again with the possibility of having to drive a Grumman. On this, one must give proper weight to the respondent's argument that in the event of a future route restructure, there being no evidence of such employer intention, there is no reason to conclude that in such an instance the appellant would again be required to drive such a vehicle and that, in addition to the decrease in number of such RHD routes, Mr. Tretiak's ever increasing seniority would make it possible for the latter to bid on preferred and thus non-RHD routes. Such argument serves to put in perspective the additional principle adopted through Tribunal case law to the effect that the right of refusal is a continuing and permanent right that remains with an employee through the various stages of one's employment.

[114] In this respect, in Manderville v. Correctional Service Canada, 2015 OHSTC 3, having reiterated the individuality of the right of refusal and its needed independent assessment by a health and safety officer, the Appeals Officer stated: ''in addition, given my determination that the case is moot, it does not preclude future work refusals under similar circumstances. Each work refusal is assessed on a case by case basis and an appeal is heard in light of the facts and circumstances in each case.''. (emphasis added)

[115] This being said, certain evidentiary elements need to be noted, in addition to the specific situation of the appellant which has changed from the time of the latter's refusal to work to the time of this case coming to determination at appeal. As such, it was put forth and not challenged that the route restructure was planned for many months before being eventually implemented on October 17, 2016, resulting in route SS50, at the center of the case at the time of refusal, no longer existing. The points of call on former route SS50 now comprise new routes SS3, 15, 23 and 24, with none of the new routes being RHD routes and all RSMCs servicing said new routes driving personal vehicles and not required to drive Grumman LLVs. In addition, one cannot ignore the appellant’s limited experience with Grummans in general or Grumman #48321 in particular prior and after the latter's refusal to work and his subsequent access to non-RHD routes since.

[116] Finally, while the appellant may have presented witnesses, co-workers, who, to various degrees testified to their dissatisfaction or lack of safe sense relative to the Grumman vehicle, no evidence was presented that refusals to work for similar reasons to those of the appellant have been registered.

[117] Having considered all of the arguments and evidence, I have come to the conclusion that, as regards the first step of the Borowski (supra) analysis applied to the appellant's circumstances, there clearly remains no live controversy in this matter as I formulate the present conclusion. In short, those circumstances that gave rise to the work refusal by the appellant no longer exist and as a consequence, I must find that the issues raised have become academic and the appeal is therefore moot.

[118] This leaves the question of whether, given the above conclusion, I should opt to exercise my discretion to decide the matter nonetheless on the merits. In order to do this, three factors need to be considered while remaining conscious of whether public interest would call for my determining the merits of the case. As previously stated, those factors relate to the presence of an adversarial context, the concern for judicial economy and the need for sensitivity to one's adjudicative role.

[119] On the first factor, I cannot ignore the singularity of the appellant's action and claim, the individuality of one's right of refusal, as well as the fact that on the whole, the appellant's situation has changed such that he now uses his personal non-RHD vehicle to service his route. In short, the source of the danger has been removed and acceptable corrective action to address the appellant’s situation has been implemented. Given all of those, I would find it difficult to conclude to the continued existence of an adversarial relationship.

[120] With respect to judicial economy and the role of the Tribunal as an adjudicative branch, it is obvious that the appellant would have the undersigned decide the matter on the merits if only to counterbalance the ''waste of resources'' that he sees as characterizing a finding of mootness at this stage, while the respondent and intervenor consider that, relative to those two factors, there is no need to adjudicate an issue that is essentially abstract and academic, special circumstances being absent.

[121] While I share the opinion of both the respondent and the intervenor in this regard, the point should be made in this case, however, that the adjudicative function of the Tribunal, to be of value, demands that it be exercised to balance opposing views or positions that are supported by sufficient evidentiary and argumentative elements. In this case, I find that the information and evidence concerning the vehicle at issue was incomplete and not presented in a manner which would allow the undersigned to make definitive findings on its safety or lack thereof.

[122] I comment in this manner because throughout this hearing, I had occasion to view completely a Grumman vehicle at rest and also was part of a somewhat extensive route experience on such a vehicle on route SS50, albeit not in winter driving conditions, that served to demonstrate not only the obvious lack of creature comfort offered by such a commercial working vehicle but also served to raise certain questions related to the possible validity of the claims made by the appellant and some apparent concerns regarding the safe operations of the vehicle on the relevant route. However, such matters were not fully addressed in the information provided by either side and, at any rate, the appellant’s claims were not supported by cogent evidence, such that it would certainly be of disservice to the issue for the undersigned to attempt to decide on safety in light of the evidence presented.

[123] Finally, I am of the view that this case is not an extraordinary situation in which rendering a decision on the merits is necessary to clarify the extent of a right (namely, the right to refuse to work) or in which it would be in the public interest to rule on a matter of paramount importance to the employers and employees who are subject to the Code. The question raised by this appeal is essentially a question that is based on an assessment of the facts. In the state of this case, it has become academic and no sufficient public interest has been demonstrated, such that it would nevertheless be necessary for the undersigned to consider its merits. Quite to the contrary, a decision that a danger existed at the time of the refusal would have no practical purpose in the present context and could only potentially have a prospective effect on possible future situations, without those conditions or circumstances even being known at this time. In my opinion, this would be an ill-advised exercise.

[124] Considering all that precedes and having concluded to the mootness of the appellant's case and my decision not to exercise my discretion vis-a-vis the merits, the appeal is consequently dismissed.

Jean-Pierre Aubre

Appeals Officer

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