2017 OHSTC 20

Date: 2017-10-27

Case No.: 2017-18

Between:

Cameron Air Service Limited

Indexed as: Cameron Air Service Ltd.

Matter: Application for a stay of a direction issued by an Official Delegated by the Minister of Labour

Decision: The application for a stay is dismissed

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

For the appellant: Mr. Graham Wishart, Cameron Air Service Limited

Citation: 2017 OHSTC 20

Reasons

[1] On June 7th, 2017, Cameron Air Service Ltd., the employer, submitted an application to appeal two directions issued pursuant to subsection 145(1) of the Canada Labour Code (the Code) on May 8th, 2017, by Ms. Janice Berling, an official delegated by the Minister of Labour (ministerial delegate). The application was submitted through Mr. Graham Wishart, the president and chief executive officer of the employer.

[2] The appeal was accompanied by an application for a stay of the directions, made pursuant to subsection 146(2) of the Code:

146 (2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.

[3] On June 22nd, 2017, a teleconference was held to determine whether a stay of the directions ought to be granted. Present were Mr.Wishart, Mr. Tom Lindsay, Operations Manager for the employer, and Adam Zahody, an employee health and safety representative. Also present were Ministerial Delegate Berling and Ms. Mary Pollock, another ministerial delegate who had accompanied Ms. Berling on the inspection regarding sound levels in the employer’s workplace.

Background

[4] On September 23rd, 2016, Ministerial Delegates Berling and Pollock conducted an inspection regarding sound levels at the employer’s workplace located at Billy Bishop Toronto City Airport, Toronto, Ontario. The ministerial delegates were concerned with the sound levels inside two types of airplanes operated by the employer, the Cessna 206 and the Cessna 208, while they are in operation.

[5] On September 28th, an Assurance of Voluntary Compliance (AVC) was sent to the employer regarding the testing of the sound levels in the planes. On September 30th, the employer returned the signed AVC stating that the sound levels would be measured by November 23rd. On November 24th, the employer indicated it had not done the testing as the cost of doing so was too high. Nevertheless, on November 30th, the employer said it would do the testing by December 12th. On December 20th, the employer again said it would not be doing the testing because the “testing is redundant and unjustified”. On May 8th, the two directions were issued to the employer.

[6] Subsection 145(1) of the Code provides the Minister of Labour (and, by implication, ministerial delegates) with the authority to issue a direction based on a contravention of the Code:

145 (1) If the Minister is of the opinion that a provision of this Part is being contravened or has recently been contravened, the Minister may direct the employer or employee concerned, or both, to

(a) terminate the contravention within the time that the officer may specify; and

(b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.

[7] The first direction was based on paragraph 141(1)(a) of the Code:

141 (1) Subject to section 143.2, the Minister may, in carrying out the Minister's duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may

(a) conduct examinations, tests, inquiries, investigations and inspections or direct the employer to conduct them;

[8] The first direction was a direction to:

(...) conduct an investigation regarding sound levels in the Cessna 206 and the Cessna 208, while they are in operation, to determine whether an employee(s) may be exposed to an A-weighted sound pressure level equal or greater than 84 dBA for a period that is likely to endanger the employee’s hearing.

[9] A direction made under subsection 145(1)(a) is based on a contravention. Under the Code, the employer has a duty to ensure that the levels of sound are in accordance with prescribed standards:

125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

(n) ensure that the levels of ventilation, lighting, temperature, humidity, sound and vibration are in accordance with prescribed standards;

[10] The prescribed standards are those found in the regulations made pursuant to the Code:

122 (1) In this Part, prescribe means prescribe by regulation of the Governor in Council or determine in accordance with rules prescribed by regulation of the Governor in Council;

[11] The relevant regulations are the Aviation Occupational Health and Safety Regulations, SOR/2011-87 (Aviation Regulations). Although not referenced directly in the direction, the wording of the direction was based on subsection 2.3(1) of the Aviation Regulations. It is important to set out the context of subsection 2.3(1) as it is one step in a process:

[12] The second direction was based on paragraph 141(1)(h) of the Code:

[13] The second direction was a direction to:

(...) produce, no later than June 9, 2017, the documents and information relating to the health and safety of your employees or to the safety of the work place which are identified below, and to permit the said official delegated by the Minister of Labour to examine and make copies or take extracts of such documents and information:

Results of the sound level testing conducted inside the Cessna 208 and Cessna 206 while in operation.

[14] An employer has a duty to comply with a direction given to it by a ministerial delegate:

125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

(…)

(x) comply with every oral or written direction given to the employer by the Minister or an appeals officer concerning the health and safety of employees;

[15] The second direction is contingent upon the first direction being complied with. The application for a stay was concerned primarily with the first direction, the requirement to test the sound levels in the airplanes while in operation. If the first direction is stayed, the second direction must also be stayed as there would be no report to provide to the ministerial delegate. It would make no sense to decide not to stay the direction to test the sound levels and then to stay the provision of the report about such testing to the ministerial delegate.

Analysis

[16] The authority for an appeals officer to grant a stay is found in subsection 146(2) as set out above. The appeal officer’s discretion must be consistent with the purpose of the Code, which is articulated in section 122.1, which reads:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

[17] A three part test has been adopted by appeals officers in regards to a stay application:

1) The applicant must satisfy the appeals officer that there is a serious question to be adjudicated, as opposed to a frivolous or vexatious claim;

2) The applicant must demonstrate that significant harm would be suffered if the direction is not stayed;

3) The applicant must demonstrate that measures will be put in place to protect the health and safety of employees or any person granted access to the workplace should the stay be granted.

1) Is the question to be adjudicated serious as opposed to a frivolous or vexatious claim?

[18] The first question is whether the matter at hand is sufficiently serious to warrant a stay of the directions. The appellant made several arguments:

(i) The testing for sound levels would be redundant, it was unjustified, and it would be expensive;

(ii) All pilots wear noise cancellation headphones, which are sufficient as personal protective equipment (PPE) to protect the pilots’ hearing; and

(iii) The manufacturer of the airplanes in question, Cessna, should do the testing, not the employer, as otherwise there would have to be hundreds of tests by the many employers in the industry.

[19] I have no doubt that the issue is a serious one. Hearing loss from workplace exposure to noise is a serious matter in itself. Any requirements to deal with noise hazards must also be a serious matter. The employer’s position is that it should not have to do testing of sound levels. Excusing the employer from doing sound testing as required by the regulations would be a serious matter, however decided. Common sense would suggest that if pilots are adequately protected by the use of headphones, then the direction is requiring, on the face of it, that the employer would be doing testing that would be expensive but which would have no effect. The employer was not denying that the sound levels in the airplanes while in operation were high. Any testing would show this. The inevitable response, the employer says, would be a requirement that pilots wear noise-cancelling headphones, which they are already doing. There is no other feasible control method for the high noise levels according to the employer. Since the end result is the headphones that are currently being used, why not cut to the chase and adopt the headphones without doing any expensive testing?

[20] Certainly if everything the employer says is true then it would be a serious matter to be subject to a useless direction that was expensive to comply with. Spending money on workplace health and safety with no possible reduction in risk is a serious matter. The employer is not making a frivolous or vexatious claim in its application.

2) Would the appellant suffer significant harm if the direction is not stayed?

[21] The significant harm cited by the employer is the expense of doing useless testing. Putting aside for the moment whether the testing is actually useless, what is the expense of complying with the ministerial delegate’s direction to test the sound levels? Mr. Wishart stated that the cost would be at least $5000. However, he made the point that if hundreds of operators were all required to do the same testing, the cost to the industry would be very high. The tests done by all such employers would reach the same conclusions as one test would.

[22 ] The employer relied on Mr. Wishart’s evidence primarily. Mr. Lindsay stated that in his opinion there was no better PPE available than the headphones the pilots were currently using. Mr. Zahody, representing employees, did not express any disagreement with the employer’s position.

[23] Mr.Wishart came across as an experienced, well-intentioned individual with a practical no-nonsense bent. I have some sympathy with his position. However, I do not think the employer has made the case that the employer would suffer significant harm if the directions are not stayed

[24] The employer employs seven pilots and operates four aircrafts. It has been in business for 25 years. While Cameron Air Service Ltd. is not Air Canada, it is certainly not, pardon the expression, a fly-by-night operation. An expense of $5000 to $10,000 would not come close to impairing the financial viability of the employer. Such an expenditure would not be a significant harm to the employer. In any event, cost alone would not justify the stay of a direction, as appeals officers have ruled repeatedly when dealing with applications for a stay.

[25] As for the impact on the airline industry, that is mere speculation. A significant impact on the airline industry, even if true, is not a significant impact on this employer. It is an argument in extremis. It is an issue that is not relevant to the test for a stay. In any event, there is no reason to believe that ministerial delegates will be issuing 100's of directives across the industry. At the moment, the ministerial delegates have not been shown any hard numbers regarding the levels of sound in these types of aircraft in the specific work place at hand.

[26] To reiterate, the employer is not denying that the sound levels in the work place are very high. Since it accepts that fact, the employer says any testing of its own would be redundant and useless. The employer referred to some numbers for sound levels which were said to have been obtained from an internet search. A level of 93 to 94 dBA was mentioned. The employer also said that other operators had reported that sound levels for the Cessna 208 were in the vicinity of 90 dBA. The employer accepts that the sound levels in its airplanes while in operation are at similar levels.

[27] These levels are quite high. The decibel scale is a logarithmic scale, not a linear scale. 94 dBA is not merely 12% higher than 84 dBA, it is much, much more. To give an idea of how significant these levels are, one can note the exposure limits in the Aviation Regulations:

2.4 No employee shall, in any 24-hour period, be exposed to

(a) an A-weighted sound pressure level set out in column 1 of the schedule to this Part for a duration of exposure exceeding the applicable duration set out in column 2;

[28] The schedule indicates that an employee without hearing protection may only be exposed in a 24 hour period for 16 hours at 84 dBA, or 4 hours at 90 dBA, or 1.3 hours at 95 dBA, or .40 hours at 100 dBA. The employer said that its pilots make short trips of about 2 hours. A pilot without hearing protection, exposed to 95 dBA, would not only have to cut short the 2 hour flight, but would not be able to fly again for 24 hours. But the employer’s pilots do wear noise-cancelling headphones. I note the numbers from the schedule in order to indicate how serious the matter could be in terms of noise exposure.

[29] Is the employer entitled to avoid doing noise-testing and simply adopt hearing protection? If so, then the requirement to do testing set out in the first direction would be arguably redundant, unjustified and useless. But the employer is not so entitled. The Code explicitly states the principle of “PPE as a last resort”:

122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

[30] The Aviation Regulations are even more specific:

Reduction of Sound Exposure

2.5 If it is reasonably practicable, every employer shall, by using controls or other physical means other than hearing protectors, reduce the exposure to sound of employees to a level that does not exceed the limits established by section 2.4

[31] The employer, in the end, may be correct that the only solution to the problem of noise exposure is the wearing of the headphones that they are currently using. But the employer has to follow a process to legitimately come to that conclusion. The Aviation Regulations set out a process. The employer is required to do measurements first and then consider control measures. If controls can be applied other than PPE, they should be. Only if there is residual risk after other controls have been deployed should PPE be adopted. The employer’s investigation is the basis for an analysis regarding controls, the preparation of a written report and hazard communication to the employees. The Aviation Regulations contain specific requirements as to how the testing should be done:

Measurement and Calculation of Exposure

2.2 (1) For the purposes of this Part, the exposure of an employee to sound shall be measured using an instrument that

(a) is recommended for that measurement in clause 4.3 of CSA Standard CAN/CSA-Z107.56-06, Procedures for the Measurement of Occupational Noise Exposure; and

(b) is certified, by a certification body accredited by the Standards Council of Canada to grant the certification, as meeting the requirements for such an instrument set out in clause 4 of that Standard.

(2) The exposure of an employee to sound shall be measured in accordance with clauses 5, 6.4.1, 6.4.4, 6.5.2, 6.5.4, 6.6.2 and 6.6.4 of the Standard referred to in paragraph (1)(a).

[32] The Aviation Regulations contain specific requirements that any proposed PPE must meet:

Hearing Protection

2.7 (1) When an employer is required to make a report under section 2.6, the employer shall, as soon as is reasonably practicable, provide every employee whose exposure to sound is likely to exceed the limits established by section 2.4 with a hearing protector that

(a) is certified, by a certification body accredited by the Standards Council of Canada to grant the certification, as meeting the requirements set out in CSA Standard CAN/CSA-Z94.2-02 (R2007), Hearing Protection Devices - Performance, Selection, Care and Use; and

(b) prevents the employee using the hearing protector from being exposed to a level of sound that exceeds the limits established by section 2.4.

(2) If an employer provides a hearing protector to an employee under subsection (1), the employer shall, in consultation with the work place committee or the health and safety representative, formulate and implement a program to train the employee in the fitting, care and use of the hearing protector.

[33] Unless the employer goes through the process set out in the regulations it cannot be sure what the levels of sound are. It cannot be sure that numbers it obtains from the internet or other operators were numbers obtained following the requirements in the regulations. It cannot be sure whether other control measures might be suitable. It cannot be sure that the adopted headphones are in compliance. It would not have anything substantive to communicate with employees. It would not have a report for anyone else, such as an employee health and safety representative or the ministerial delegate, to check independently that the correct steps have been taken.

[34] In essence, the employer is asking that it be excused from complying with the law. It is not redundant, unjustified or useless to take the necessary, mandatory first step in the process of developing a work place-specific hearing conservation program. It cannot be a significant harm to comply with the law.

[35] Accordingly, I find that the appellant has not demonstrated that it would suffer significant harm if the direction is not stayed.

[36] Given that the second criterion of the test for a stay of a direction has not been met, it is not necessary to examine the third criterion.

Decision

[37] Accordingly, the employer’s application for a stay of the directions issued by Ministerial Delegate Berling is dismissed.

Peter Strahlendorf

Appeals Officer