2017 OHSTC 24

Date: 2017-12-07

Case No.: 2016-26

Between:

Expertech Network Installation Inc., Appellant

and

Unifor, Respondent

Indexed as: Expertech Network Installation Inc. v. Unifor

Matter: Appeal filed under subsection 146(1) of the Canada Labour Code against two directions issued by an official delegated by the Minister of Labour.

Decision: The directions are confirmed.

Decision rendered by: Mr. Jean Arteau, Appeals Officer

Language of decision: French

For the appellant: Mr. Frédéric Henry, Counsel, Bell Canada

For the respondent: Mr. Daniel Cloutier, Union Representative, Unifor

Citation: 2017 OHSTC 24

Reasons

[1] This decision concerns an appeal filed under subsection 146(1) of the Canada Labour Code (the Code), against two directions issued to Expertech Network Installation Inc. (Expertech) on June 15, 2016 by Mr. Régis Tremblay, an official delegated by the Minister of Labour (ministerial delegate).

Background

[2] The following facts are taken from the ministerial delegate’s report and testimony, as well as from the testimonies given at the hearing.

[3] On June 6, 2016, four employees of Expertech, a company responsible for provisioning the Bell Canada network, were tasked with installing a cable approximately 125 metres in length at the corner of Sorel Street and Chemin de la Grande Ligne in Granby, Quebec.

[4] Mr. Michael DiCriscio, one of the four Expertech employees, climbed a ladder that was leaning against a pole. The pole was supporting Hydro-Québec power lines, as well as Bell Canada cable and phone lines (telecommunications cables). Mr. El Hassane Benalouane, a second Expertech employee, also climbed a ladder, which was leaning on the suspension wire supporting the telecommunications cables.

[5] Around 3:07 p.m., the pole supporting Mr. DiCriscio’s ladder broke and both employees who were perched on a ladder fell from a height of three to five metres (the incident). A fire broke out in an adjoining tree when the medium-voltage line came in contact with the foliage, but the flames were quickly brought under control by the Granby fire department (the firefighters), who had been contacted by Mr. Abraham, another Expertech employee who was at the scene of the accident.

[6] Mr. DiCriscio and Mr. Benalouane were both taken to the Granby hospital by ambulance after their fall.

[7] After Mr. Abraham contacted emergency services, Mr. Ilfrantz, the fourth Expertech employee at the scene, telephoned Mr. Frédéric Mercure to inform him of the accident; Mr. Mercure is the project manager at Expertech. Mr. Mercure was therefore informed at about 3:15 p.m. that a work accident involving two Expertech employees had occurred.

[8] Between 3:15 p.m. and 3:30 p.m., Mr. Mercure informed Mr. Daniel Trépanier, Expertech’s occupational health and safety director, of the incident. Mr. Trépanier, according to his testimony, was made aware that a work accident had occurred in Granby, that a pole had broken, that a fire had broken out in an adjoining tree, and that two technicians had been brought to the hospital by ambulance.

[9] Around 6:00 p.m., Mr. Mercure arrived at the scene of the accident. When he arrived, according to his testimony, the wreckage from the accident had already been moved by some Hydro-Québec employees who were working to restore power for their customers in the vicinity.

[10] After having retrieved the ladders and safety belts of the injured employees, Mr. Mercure went to the hospital to inquire about the medical status of Mr. DiCriscio and Mr. Benalouane. Mr. DiCriscio’s medical report, entered as Exhibit P-3.6, indicates a lumbar contusion, a minor injury requiring two days of light duty work before returning to regular work. Mr. Benalouane had some fractured ribs, a ruptured spleen and a punctured lung.

[11] The following day, June 7, 2016 at 7:00 p.m., Mr. Trépanier went to Hydro-Québec’s yard in Granby to locate the broken pole that had been removed from the scene of the incident. Based on his testimony, Mr. Trépanier was informed that only the boot of the broken pole had been removed from the scene and that the rest of the pole was attached to the new pole installed by Valard Construction Ltd. (Valard), a Hydro-Québec contractor. Mr. Trépanier then examined the boot of the broken pole (the part of the pole close to the ground) in the Hydro-Québec yard, where he returned a second time with an engineer within a few days.

[12] At 1:30 p.m., Mr. Trépanier attempted to alert the federal authorities of the accident. He left a voicemail message with Manon Perreault, a Labour Program employee who had previously served as occupational health and safety officer in a case involving the appellant.

[13] At 3:22 p.m., after still not having received a return call, Expertech decided to call the official number of the Labour Program to report the accident. Mr. Paul St-Cyr, who was on duty at the time, received the call from Expertech and initiated the required protocol after hearing the information.

[14] At around 9:00 a.m. on June 8, 2016, Ministerial Delegate Régis Tremblay was assigned to the case and began his investigation.

[15] At about 9:55 a.m., the ministerial delegate contacted Mr. Trépanier for investigation purposes. Mr. Trépanier told the ministerial delegate where the boot of the broken pole was located and invited him to go and examine it. The ministerial delegate did not go and examine the pole boot.

[16] At 2:55 p.m., the ministerial delegate arrived at the scene of the accident in front of the residence at 1711 Sorel Street, Granby, Quebec. He observed that a new pole had been installed and that no wreckage, article or thing related to the incident remained, except for the intact part of the broken pole that was attached to the new pole installed by Valard.

[17] Faced with this situation and unable to carry out a proper investigation, the ministerial delegate gave two directions to Expertech on June 15, 2016. The first direction reads as follows:

[Translation]

In the matter of the Canada Labour Code Part II - Occupational Health and Safety

Direction to the employer pursuant to subsection 145(1)

On June 8, 2016, the undersigned official delegated by the Minister of Labour conducted an investigation following a work accident that occurred on June 6 at approximately 3:07 p.m., involving two employees working at a site operated by Expertech Network Installation Inc., an employer subject to Part II of the Canada Labour Code. Said workplace is located at 720 Cowie, Granby, Quebec, J2G 3X6, and is sometimes known as Expertech Network Installation Inc.

The official delegated by the Minister of Labour is of the opinion that the following provision of Part II of the Canada Labour Code was breached.

No. / No: 1

127(1) - Part II of the Canada Labour Code

Subject to subsection (2), if an employee is killed or seriously injured in a work place, no person shall, unless authorized to do so by the Minister, remove or in any way interfere with or disturb any wreckage, article or thing related to the incident except to the extent necessary to

(a) save a life, prevent injury or relieve human suffering in the vicinity;

(b) maintain an essential public service; or

(c) prevent unnecessary damage to or loss of property.

At 3:22 p.m. on June 7, 2016, the time at which the Quebec regional office of the Labour Program was informed that one of the two employees had been seriously injured, the employer removed the wreckage, articles and things related to the incident.

Therefore, you are hereby directed, pursuant to paragraph 145(1)(a) of Part II of the Canada Labour Code, to terminate any contravention immediately. Furthermore, you are hereby directed, pursuant to paragraph 145(1)(b) of Part II of the Canada Labour Code, within the time specified by the official delegated by the Minister of Labour, to take the steps prescribed by the official to ensure that such contravention does not continue or reoccur.

[18] The second direction reads as follows:

[Translation]

In the matter of the Canada Labour Code Part II - Occupational Health and Safety

Direction to the employer pursuant to subsection 145(1)

On June 8, 2016, the undersigned official delegated by the Minister of Labour conducted an investigation following a work accident that occurred on June 6 at approximately 3:07 p.m., involving two employees working at a site operated by Expertech Network Installation Inc., an employer subject to Part II of the Canada Labour Code. Said workplace is located at 720 Cowie, Granby, Quebec, J2G 3X6, and is sometimes known as Expertech Network Installation Inc.

The official delegated by the Minister of Labour is of the opinion that the following provision of Part II of the Canada Labour Code was breached.

No. / No: 1

125. (1)(c) - Part II of the Canada Labour Code, 15.5(b) of the Canada Occupational Health and Safety Regulations.

The employer shall report to the Minister, by telephone or telex, the date, time, location and nature of any accident, occupational disease or other hazardous occurrence referred to in section 15.4 as soon as feasible but not later than 24 hours after becoming aware of that occurrence.

The accident occurred at approximately 3:07 p.m. on June 6, 2016. The employer notified the Quebec regional office of the Labour Program at around 1:30 p.m. on June 7, 2016 by leaving a voicemail message on the cell phone of a labour affairs officer. The employer called again around 3:22 p.m. on June 7, 2016 and reported the accident to the Labour Program.

Therefore, you are hereby directed, pursuant to paragraph 145(1)(a) of Part II of the Canada Labour Code, to terminate any contravention immediately.

Furthermore, you are hereby directed, pursuant to paragraph 145(1)(b) of Part II of the Canada Labour Code, within the time specified by the official delegated by the Minister of Labour, to take the steps prescribed by the official to ensure that such contravention does not continue or reoccur.

[19] Expertech appealed the above two directions to the Tribunal on June 30, 2016, and a hearing took place in Montréal on March 21 and 22, 2017.

Issue

[20] Were the ministerial delegate’s two directions well founded?

Submissions of the parties

A) Appellant’s submissions regarding the first direction

[21] The appellant advanced three arguments to demonstrate that the ministerial delegate’s first direction was not well founded. The appellant argued the following:

  1. It was not the one that altered the scene of the incident;
  2. The intervention by Hydro-Québec and the firefighters was necessary to prevent unnecessary damage to or loss of property; and
  3. The intervention by Hydro-Québec and the firefighters was necessary to restore electricity, an essential service.
Mistaken identity

[22 ] The appellant alleges that it was not Expertech that altered the scene of the incident, but rather Hydro-Québec and its contractor Valard.

[23] In order to support the alleged fact that the appellant played no role in altering the scene of the incident, the appellant indicated that subsection 127(1) of the Code refers to quiconque [no person] meaning anyone and not just to an employer. Since the term quiconque is not defined in the Code, the appellant suggests that it must be interpreted in its ordinary meaning in order to prohibit anyone from interfering with or disturbing any wreckage, article or thing related to the incident.

[24] On this point, the appellant cited M.B. c. R., 2005 QCCA 1144, in which the Court indicated that in using the term “quiconque” [every person] in subsection 212(4) of the Criminal Code of Canada, the legislator meant “any person”. The appellant also cited Commission de la santé et de la sécurité du travail c. Dollorama, s.e.c., 2011 QCCS 5630, in which it is specified that the presence of the term “quiconque” [every person] in the Act Respecting Occupational Health and Safety does not create ambivalence, but that it is a term commonly used to include a range of natural and legal persons.

[25] The appellant adds that if section 127 of the Code pertained to the employer only, the legislator would have used the word employeur [employer] and not quiconque [no person] in order to clarify who is subject to the provision.

[26] Lastly, the appellant notes that the incident involved a pole owned by Hydro-Québec and located on private residential property. The work site was therefore not under the appellant’s control, and the appellant affirmed having received no request for authorization or advance notice from Hydro-Québec or from its contractor Valard before completing the work.

[27] Based on the above submissions, the appellant claims that it did not breach section 127 of the Code, as suggested in the first direction, because it did not remove any wreckage, article or thing related to the incident.

Rescue operations and protection of property

[28] The appellant acknowledges that it is preferable for the scene of a work accident to be kept intact in the immediate aftermath of the accident so that a ministerial delegate can carry out an investigation. However, it maintains that sometimes it is necessary to alter the scene of the incident in an emergency in order to be able to respond appropriately. On this point, the appellant relies on the exceptions listed in section 127 of the Code. These exceptions provide that it is possible to interfere with or disturb any wreckage, article or thing related to the incident when it is necessary to save a life, prevent injury or relieve human suffering in the vicinity, maintain an essential public service or prevent unnecessary damage to or loss of property.

[29] The appellant suggests that the removal of the pole boot and ladders by the City of Granby firefighters as well as by Hydro-Québec and Valard was justified in order to prevent the spread of a fire that had broken out in the foliage of a tree.

[30] As related by Mr. Mercure in his testimony, some Hydro-Québec officials said they had removed the technicians’ ladders that were leaning against the broken pole as well as on the electric cables. These actions by Hydro-Québec made it possible to interrupt the power as requested by the firefighters in order to extinguish the fire and prevent it from spreading in the vicinity. According to the appellant, these actions prevented unnecessary damage to or loss of property.

Essential public service

[31] The appellant next argues that the operations performed by Hydro-Québec and Valard were needed to restore power in the vicinity, electricity being an essential service.

[32] Although, according to the appellant, the ministerial delegated had suggested that restoring power in the vicinity could wait, the appellant argues that paragraph 127(1)(b) of the Code provides for continued electric power, that is, continuity of the service. The provision does not specify the possibility of an electric power interruption, regardless of whether the interruption is short or long, or whether it applies to a small or larger segment of the population.

[33] To support this argument, the appellant refers to Jonquière (Ville) c. Syndicat des employés municipaux de Jonquière, SCFP, sl 2466, 1997 CanLII 15637 (QC CSE):

[Translation]

The Conseil must aim to protect public health and safety. Accordingly, in terms of power distribution, […] it is the continuity of service that constitutes the essential services to be maintained. So that is what the Conseil must ensure.

[…]

We have just seen that, for the Conseil, it is the guarantee of continued electricity that constitutes the essential services to be maintained. It is therefore imperative that this interruption of approximately 30 minutes, required to transfer the load, take place at a time when the residents, hospital and local community service centre (CLSC), including their respective clients, are least likely to have their health and safety threatened.

Whereas the continuous distribution of electricity is in itself an essential service to be maintained.

[34] The appellant therefore submits that the intervention by Hydro-Québec and Valard in terms of removing any wreckage, article or thing related to the incident was protected under paragraph 127(1)(b) of the Code, because electricity is an essential service.

[35] In light of the three arguments above, that is, the mistaken identity of the person who removed the wreckage, articles or things related to the incident, the need to remove the wreckage, articles or things in order to prevent unnecessary damage to or loss of property, and the removal of wreckage, articles or things to maintain an essential service, the appellant asks that the ministerial delegate’s first direction be rescinded.

B) Respondent’s submissions regarding the second direction

[36] The respondent noted that Valard not only altered the scene of the accident before an investigation could be carried out, but also replaced the faulty structures without consulting the appellant.

[37] The respondent believes that federal laws must be applied even when a federal business uses equipment that belongs to a provincial entity, and that the appellant should have ensured that it could comply with its legal obligations under the Code, notwithstanding the fact it did not own the equipment used.

[38] The appellant should therefore have ensured, according to the respondent, that the third parties sharing the equipment were complying with the obligations set forth in the Code. The respondent submits that a procedure for investigations into an accident such as the one that occurred on June 6, 2016 should have been set out in an agreement between Bell Canada and Hydro-Québec for the use of poles. The respondent submits that the agreement was not submitted as evidence because it did not bind the appellant.

[39] Given that Bell Canada is not a party to this case and that Hydro-Québec is not under federal jurisdiction, the respondent claims it is inconceivable that the appellant is not being held responsible for the application of the relevant statutory provisions under the Code in relation to the accident of June 6, 2016 in which two of its employees were injured.

[40] As for the appellant’s arguments stipulating that changing the scene of the accident was necessary for safety reasons and for maintaining an essential service, the respondent replies that it has not been demonstrated during the hearing that the actions taken by Hydro-Québec and Valard were the only course of action to take. The respondent submits that once the fire was under control, there was no longer any urgency and that the scene of the accident should have been kept intact. The respondent supports its position based on the fact that no evidence was submitted in relation to the need to remove the wreckage, articles and things related to the incident.

[41] In the end, the respondent argues that the appellant should have intervened in order for Hydro-Québec and Valard to make the necessary and careful arrangements so as to ensure compliance with the provisions of the Code relating to work accidents.

[42] The respondent requests that the first direction be confirmed.

C) Appellant’s response regarding the first direction

[43] The appellant refutes the respondent’s position that the appellant tried to avoid its duty with respect to the removal of any wreckage, article or thing on the scene of the accident by alleging that subsection 127(1) of the Code does not require the employer to keep the wreckage, articles and things related to the incident under seal. The appellant reiterates that the obligation under section 127(1) is on quiconque [no person], meaning anyone and not only the employer, and that the appellant did not breach said section.

[44] As for respondent’s argument that no evidence was submitted concerning the need to remove the wreckage, articles and things, the appellant notes that the investigation conducted by the ministerial delegate revealed that the accident led to a fire and an electric power interruption, and that the ministerial delegate and respondent both admitted that the firefighters’ response resulting in the removal of ladders was necessary to control the fire.

[45] With respect to the work done to restore power, the appellant repeats that it was needed to restore the essential service of supplying power in the vicinity, and indicates that if the respondent believes there was a way to restore power without changing the broken pole, the onus was on the latter to prove it.

[46] The appellant states that the ministerial delegate admitted that the work performed by Hydro-Québec and Valard was needed to restore power, but that he would have liked to be able to conduct his investigation before the work was done. However, just as in its initial submissions, the appellant points to the term maintenir [maintain] used in paragraph 127(1)(b) of the Code, a term suggesting that the essential service must be provided on a continuous basis.

[47] The appellant concludes its response by noting that accepting the respondent’s argument would amount to depriving the exceptions under paragraphs 127(1)(a), (b) and (c) of the Code of any possible practical result.

D) Appellant’s submissions regarding the second direction

[48] The appellant insists from the outset that, under paragraphs 26, 30 and 32 of the Tribunal decision Royal Bank of Canada, 2012 OHSTC 5 (Royal Bank of Canada), Pamphlet 7 “Hazardous Occurrence Investigation, Recording and Reporting” published by Employment and Social Development Canada, which was called Human Resources and Skills Development Canada at the time, and based on the cross examination by the ministerial delegate at the hearing of March 21, 2017, the time limit for reporting a work accident to the Minister is 24 hours.

[49] The appellant then specifies that, as mentioned in Royal Bank of Canada and in Pamphlet 7 referred to above, the period of 24 hours set out in section 15.5 of the Canada Occupational Health and Safety Regulations (SOR/86-304) (the Regulations) begins when the employer learns of the occurrence of a work accident involving temporary disabling injuries to two or more employees. In the ministerial delegate’s report, the time of the incident is established at 3:07 p.m. on June 6, 2016, and according to the appellant, it is that precise time that was wrongly used by the ministerial delegate to calculate the 24-hour period.

[50] Accordingly, the appellant submits that the ministerial delegate made an error in calculating the period, because it was not until between 8:00 p.m. and 8:30 p.m. on June 6, 2016 that Mr. Mercure, according to the latter’s testimony, received a note to the effect that a second employee, Mr. DiCriscio, was prescribed light duty work for two days. The appellant also points to the fact that Mr. Mercure’s testimony is corroborated by two emails dealing with the condition of the two injured employees, entered as Exhibits P-3.4 and P3.5.

[51] Although it had learned that Mr. Benalouane’s medical condition was serious enough to prevent him from returning to work the day after the accident, the appellant submits that it was the time at which it learned of the medical condition of a second employee, Mr. DiCriscio, that the period set out in section 15.5 of the Regulations was to begin.

[52] Therefore, according to the appellant’s claims, the beginning of the 24-hour period would be between 8:00 p.m. and 8:30 p.m., which would be acceptable based on the Regulations if one considers that Mr. Trépanier left Ms. Perreault a voicemail message at 1:30 p.m. on June 7, 2016, and that a live telephone conversation with Mr. St-Cyr from the Labour Program took place at 3:22 p.m. on June 7, 2016.

[53] The appellant states that it relieved itself of its duty to report on a situation set out in section 15.5 of the Regulations when Mr. Trépanier left a voice message with Ms. Perreault at 1:30 p.m. on June 7, 2016. Although the ministerial delegate said that only a ministerial delegate on duty or on call is able to receive notice of a situation set out in section 15.5 of the Regulations, the appellant understands that neither the Regulations nor Pamphlet 7 provides that the report must be made directly to the ministerial delegate on duty or on call, in accordance with subsection 140(1) of the Code:

140 (1) Subject to any terms and conditions specified by the Minister, the Minister may delegate to any qualified person or class of persons any of the powers, duties or functions the Minister is authorized to exercise or perform for the purposes of this Part.

[54] In terms of the means of communication used to contact the Minister, the appellant states that section 15.5 of the Regulations provides for telephone and telex communications, that Pamphlet 7 replaces telex with fax, but that the duty to communicate orally with the Minister or one of her representatives is not mentioned anywhere.

[55] The appellant believes that the voicemail message left with Ms. Perreault around 1:30 p.m. on June 7, 2016 is a permissible means of communication, as is sending a message by fax, and that the second call during which Mr. Trépanier managed to reach Mr. St-Cyr around 3:22 p.m., on June 7, 2016, is valid since it was made within the 24-hour period.

[56] Since the work accident was allegedly reported to the Minister by a permissible means of communication, within 24 hours of learning that two employees had disabling injuries, the appellant asks that the second direction be rescinded.

[57] In the event the Tribunal does not accept the argument that the work accident was reported to the Minister by a permissible means of communication within 24 hours of learning of the disabling injuries, the appellant submits that missing the deadline set out in section 15.5 of the Regulations constitutes a minimal, inconsequential failure that the law should not be concerned about. The accident occurred at 3:07 p.m. on June 6, 2016, and the telephone conversation during which the ministerial delegate claims to have been made aware of the accident took place at 3:22 p.m. the following day, June 7, 2016. The appellant therefore believes that the notification deadline was missed by a mere 15 minutes.

[58] In that regard, the appellant mentions that the ministerial delegate’s testimony is eloquent in regard to the lack of importance of a minor missed deadline because the case was given to him the morning of June 8, 2016, that is, the day after he received the information that a work accident had occurred. The appellant therefore believes that the 15 minutes by which it failed to meet the deadline and for which it is being criticized should remain inconsequential, and relied on Québec (Procureur général) c. Transport Robert (1973) ltée, 2006 QCCQ 1762, where a dispute over a violation of the Highway Safety Code was brought before the Court of Québec. In that particular case, the load considered illegal exceeded the permissible limit of 3.10 metres by 3 centimetres. In the decision, the judge used the de minimis non curat lex rule in order to acquit the accused:

[Translation]

[46] The “de minimis non curat lex” principle is a safeguard somewhat like the principle of abuse of rights that prevents “technical” violations of the law in certain circumstances from being sanctioned.

[47] This principle must be used as a screen to filter out trivial lawsuits. The Court may well come to that conclusion only after the case has been heard. It is imperative that the Court has a mechanism or an inherent discretion to prevent convictions in lawsuits that are not worth bringing in the first place. The system cannot rely solely on the discretion of the prosecutor to filter out the cases that are not worth pursuing.

[48] The Court cannot accept the prosecutor’s position that the “de minimis non curat lex” principle can only be applied in cases of an ambiguous or inaccurate provision, requiring interpretation.

[49] An inflexible and rigid justice system that applies the law indiscriminately and without discretion, allowing convictions for trivial matters is operating at the expense of the principles of fairness and fundamental justice.

[50] The Court considers in this case that the three extra centimetres is so minimal that it cannot justify a conviction, even though the law was technically violated.

[51] The Court is applying the “de minimis non curat lex” principle.

[59] The appellant believes that the de minimis non curat lex rule described in the above matter should be applied in this case in the event the Tribunal rejects the argument that the work accident was reported to the Minister through a permissible means of communication within 24 hours of learning of the disabling injuries.

E) Respondent’s submissions regarding the second direction

[60] For its part, the respondent notes that the appellant took no steps to contact the Labour Program until more than 19 hours after the accident.

[61] The respondent also points out that Mr. Mercure promptly phoned his subordinate, his superiors and the union representative responsible for the sector. However, he did not take the time to notify the federal authorities. That is one of the reasons why the respondent claims that the appellant failed to fulfil its duty to contact the Minister “as soon as feasible”, as required by the Regulations. The respondent then states that, in addition to the series of calls made by the manager at Expertech, a management group meeting was held the day after the accident to decide whether the federal authorities should be alerted.

[62] In regard to the appellant’s statement about the time it was informed of the incident, the respondent proposes that the appellant was considered to have been informed shortly after 3:07 p.m., that is, when the appellant learned that two injured employees had to be brought to the hospital by ambulance. At the very least, the respondent argues that the appellant should have known of the employees’ disabling injuries by no later than 4:45 p.m., the time at which the Expertech manager recognized the seriousness of the employees’ injuries when he went to the hospital to visit them.

[63] In order to support its reasoning, the respondent submits as Exhibit P-4 a document entitled “Hazardous Occurrence Investigation Report Under Subsection 141.(6) of the Canada Labour Code, Part II, Associated with the Death of François Bourassa.” This report details a situation that the respondent calls similar to the current situation. It concerns the death of a Bell technician in a work accident that also required a response from firefighters and a power interruption. However, in this instance, the federal authorities were notified within the 24-hour time limit, the investigation was also conducted within the 24 hours, and the scene of the accident was not altered despite circumstances similar to the incident at hand.

[64] The respondent asks that the second direction be confirmed and that Expertech’s related appeal be dismissed.

F) Appellant’s response regarding the second direction

[65] The appellant first points out that to assume that ambulance transportation was required for the two injured employees would be misleading to the Tribunal because, as it appears in the investigation report completed by the employer and the union’s safety representative, the second injured employee was able to move:

[Translation]

The technician rolled over, unbuckled his belt, got up and ran to the truck [. . .] all three then went to move him to the trailer so that he was in a safer place. […] The technician then went to see how El Hassane was doing. The firefighters arrived about five minutes later. The technician was asked to sit down and Ilfrantz was asked to hold his head. Approximately five minutes later, the ambulance arrived. After having put El Hassane on a stretcher and assessing him, the paramedics asked Michael to come with them in the ambulance, and the technician obliged.

[66] The appellant also states that the medical report entered as Exhibit P-3.6 reveals only one minor injury (lumbar contusion) requiring only two days of light duty work before returning to regular work.

[67] As for Exhibit P-4, the appellant is of the opinion that the facts it contains are unrelated to the facts of this appeal and that they are of no relevance whatsoever. Among other things, the appellant notes that the report makes no mention of the need for a response from firefighters to put out the fire or the need for a response from Hydro-Québec to maintain the power supply to the community, that the death of the employee was due to electrocution rather than a fall, that the Commission de la santé et de la sécurité du travail (CSST) reported the incident to the Labour Program and that no directions seem to have been issued under section 15.5 of the Regulations.

[68] The appellant then reiterates its request that the second direction be dismissed because the work accident was reported to the Minister through a permissible means of communication within 24 hours of learning of the disabling injuries, or alternately, that the de minimis non curat lex rule be applied.

Analysis

A) First direction

[69] The first direction referred to a violation of subsection 127(1) based on the ministerial delegate’s finding that the employer removed the wreckage, articles or things related to an incident in which an employee was seriously injured on June 6, 2016.

[70] It is not disputed that the wreckage, articles or things related to the incident were removed. The evidence shows, and this is also clearly stated in the appellant’s written submissions, that Hydro-Québec did indeed move the ladders and safety belts during its response at the site.

[71] The evidence also shows that the safety belts and ladders were then removed by Mr. Mercure, as revealed in his testimony. Moreover, the appellant repeats the following passage from Mr. Mercure’s testimony at paragraph 9 of its written submissions, as follows:

[Translation]

Mr. Mercure then left the scene of the incident to go to the Granby hospital to inquire about the medical status of the employees involved in the incident. He also testified having taken back the ladders and safety belts that had been removed earlier by Hydro-Québec as part of its response.

[Emphasis added]

[72] The appellant claims that the injured employees’ safety belts that were left on the site are not articles or things related to the incident.

[73] In my opinion, there is no basis for saying such a thing because no investigation has been carried out. In any event, it is not contested that Expertech itself, through Mr. Mercure’s actions, recovered the safety belts and ladders from the scene of the accident. I find it unnecessary to distinguish between the safety belts, ladders, or even the pole boot because all of these things were on the scene of the incident and were removed.

[74] The English and French versions of the laws of Canada also have force of law and it is customary to use both versions when interpreting legislative or regulatory provisions. In this case, subsection 127(1) of the English version seems to be much more specific than the French version. The wording remove or in any way interfere with or disturb clarifies the expression toucher […] notamment en les déplaçant and facilitates my analysis:

Interference at accident scene prohibited

127 (1) Subject to subsection (2), if an employee is killed or seriously injured in a work place, no person shall, unless authorized to do so by the Minister, remove or in any way interfere with or disturb any wreckage, article or thing related to the incident except to the extent necessary to

(a) save a life, prevent injury or relieve human suffering in the vicinity;

(b) maintain an essential public service; or

(c) prevent unnecessary damage to or loss of property.

Interdictions en cas d’accident

127 (1) Dans le cas où un employé est tué ou grièvement blessé dans son lieu de travail, il est interdit à quiconque, sans l’autorisation du ministre, de toucher aux débris ou objets se rapportant à l’événement, notamment en les déplaçant, sauf dans la mesure nécessaire pour :

a) procéder à des opérations de sauvetage ou de secours ou prévenir les blessures sur les lieux ou dans le voisinage;

b) maintenir un service public essentiel;

c) empêcher que des biens ne soient détruits ou subissent des dommages inutiles.

[Emphasis added]

[75] In its submissions, the appellant relies heavily on the fact that the articles or things related to the incident were interfered with or disturbed by the firefighters, Hydro-Québec and Valard as part of their response to bring the fire under control and restore power. After having carefully considered the evidence and reread the parties’ submissions several times, it is clear to me that these entities were responding to an emergency situation by cordoning off the site and moving the wreckage, articles and things found there.

[76] On the other hand, as noted earlier, Expertech proceeded to remove, or according to Mr. Mercure, take back its safety belts and ladders found at the scene of the incident. Since I am hearing an appeal by Expertech, I find that evidence showing that it removed certain articles or things from the work site following the incident is sufficient for me to conclude that it breached its duty under 127(1).

[77] Based on the foregoing, I believe that I do not need to rule on the actions of Hydro-Québec, the firefighters or Valard, or on the actual need for such actions on the site. The fact that some articles or things were moved beforehand does not change the fact that Expertech removed them from the scene of the accident.

[78] Based on what was presented to me, I have decided to confirm the first direction issued on June 15, 2016 by the ministerial delegate.

B) Second direction

[79] The second direction concerns the alleged non-compliance by the appellant of the deadline specified in paragraph 15.5(b) of the Regulations. Under this provision, the Minister must be advised of the date, time, location and nature of the accident that resulted in disabling injuries to two of its employees.

15.5 The employer shall report to the Minister, by telephone or telex, the date, time, location and nature of any accident, occupational disease or other hazardous occurrence referred to in section 15.4 that had one of the following results, as soon as feasible but not later than 24 hours after becoming aware of that result:

[…]

(b) a disabling injury to two or more employees;

[…]

[Emphasis added]

[80] Paragraph 15.5(b) of the Regulations states that an employer must report an accident causing a disabling injury to two or more employees to the Minister, as soon as feasible but not later than 24 hours.

[81] The first issue raised by the appellant relates to the time it had to report under paragraph 15.5(b). The appellant claims that it had 24 hours to report the accident to the Minister and supported its claims with the second page of Pamphlet 7 “Hazardous Occurrence Investigation, Recording and Reporting,” submitted as Exhibit P-3.12 (Pamphlet 7), as well as with the Tribunal case law.

[82] First of all, it is worth mentioning that Pamphlet 7 is intended as an information leaflet published in an effort to facilitate the promotion of equitable, safe and productive work environments. Although the pamphlet only has administrative value, I note that the expression used on page 2 of the pamphlet is verbatim from the wording in paragraph 15.5(b) of the Regulations, namely that the report to the Minister must be done “le plus tôt possible dans les vingt-quatre heures” [as soon as feasible within 24 hours].

[83] The appellant draws my attention to paragraphs 26, 30 and 32 of Royal Bank of Canada. This decision involves a direction issued by a ministerial delegate, called a health and safety officer (HSO) at the time, subsequent to the Labour Program being notified of the death of an employee seven days after the incident causing the death. This decision deals with the 24-hour limit set out in the Regulations. I understand from these reasons that the scheme and purpose of the Code and Regulations is to impose as short a time as possible:

[30] The direction to the employer was based most specifically on the failure to report the employee’s death within the 24 hour limit set in paragraph 15.5(a) of the Regulations and a word as to why I find that to be a valid determination is in order. As noted in paragraph 7 above, I regard the HSO’s expertise and role to be separate from the other authorities that are or may be involved in workplace deaths. In fulfilling the statutory investigative role under the Code, an HSO may be called upon to intervene with alacrity. For, example, subsection 141(1) sets out the powers of a health and safety officer. These powers include in paragraphs (f) and (g) of the subsection the ability of an HSO to direct an employer or any person not to disturb any place or thing that the HSO specifies pending an examination. The sooner an HSO is made aware of a death at a workplace, the sooner these provisions can have practical application. As such, I find that setting an as soon as possible or reasonably short time limit is consistent with the scheme and purpose of the Code and the Regulations.

[Emphasis added]

[84] The appeals officer therefore confirmed in Royal Bank of Canada that the legislator’s intent is that the time limit for reporting to the Minister one of the situations described in section 15.5 must be as short as possible.

[85] This interpretation is not only consistent with the wording of section 15.5 of the Regulations, but also with the other provisions of Part XV of the Regulations regarding hazardous occurrence investigation, recording and reporting.

[86] Several obligations in Part XV are accompanied by a time limit. These limits range from “as soon as feasible” to “within 72 hours” (15.6) or even “within 14 days” (15.8(2)(b)), yet in section 15.5, the legislator chose wording that shows urgency by using “as soon as feasible” while ensuring a maximum period of 24 hours. Logic would suggest that if it was only 24 hours, the legislator would have used wording similar to that in section 15.6, that is, simply “within 24 hours.” I shall cite the above sections that are relevant to the understanding of the time limits under Part XV:

15.3 Where an employee becomes aware of an accident or other occurrence arising in the course of or in connection with the employee’s work that has caused or is likely to cause injury to that employee or to any other person, the employee shall, without delay, report the accident or other occurrence to his employer, orally or in writing.

15.4 (1) Where an employer becomes aware of an accident, occupational disease or other hazardous occurrence affecting any of his employees in the course of employment, the employer shall, without delay,

[…]

(3) As soon as possible after receipt of the report referred to in subsection (2), the employer shall provide a copy thereof to the work place committee or the health and safety representative.

15.6 (1) The employer shall, within 72 hours after a hazardous occurrence referred to in paragraph 15.5(f) or (g), record in writing

(2) The employer shall, without delay, submit a copy of the record referred to in subsection (1) to the work place committee or the health and safety representative.

15.8 (1) The employer shall make a report in writing, without delay, in the form set out in Schedule I to this Part setting out the information required by that form, including the results of the investigation referred to in paragraph 15.4(1)(a), where that investigation discloses that the hazardous occurrence resulted in any one of the following circumstances:

[…]

(2) The employer shall submit a copy of the report referred to in subsection (1):

(a) without delay to the work place committee or the health and safety representative; and

(b) within 14 days after the hazardous occurrence, to the Minister.

[Emphasis added]

[87] In 15.5, as in other provisions of Part XV, we note the wording “as soon as feasible,” an expression that must be given its true meaning. An employer must therefore report to the Minister a work accident causing a disabling injury to two or more employees as soon as feasible but not later than 24 hours, as clearly stipulated in section 15.5 of the Regulations.

[88] The second issue raised by the appellant on the second direction relates to the starting point for calculating the time limit set out in section 15.5 to report to the Minister. The appellant emphasizes that the reporting period starts at the time the employer finds out about the situation requiring it to report, which is a matter of common sense.

[89] The duty to report, as clearly stated in section 15.5, begins when the employer learns of the situation requiring it to report. In this particular case, that duty began when the appellant learned that there was a disabling injury to two or more employees, namely between 8:00 p.m. and 8:30 p.m. when Mr. Mercure received Mr. DiCriscio’s medical note at the hospital saying Mr. DiCriscio was to take two days off.

[90] The Regulations define a disabling injury as follows:

disabling injury means an employment injury or an occupational disease that

(a) prevents an employee from reporting for work or from effectively performing all the duties connected with the employee’s regular work on any day subsequent to the day on which the injury or disease occurred, whether or not that subsequent day is a working day for that employee

blessure invalidante Blessure au travail ou maladie professionnelle qui, selon le cas :

a) empêche l’employé de se présenter au travail ou de s’acquitter efficacement de toutes les fonctions liées à son travail habituel le ou les jours suivant celui où il a subi la blessure ou la maladie, qu’il s’agisse ou non de jours ouvrables pour lui;

[Emphasis added]

[91] Once again, the English version of the provision clarifies how to interpret the expression “le ou les jours suivant.” Specifically, the English version reads “on any day subsequent to the day on which the injury or disease occurred,” clearly indicating that the day of the incident is not considered, but rather the subsequent day or even subsequent days. I therefore reiterate that the employer’s duty began, as mentioned earlier, between 8:00 p.m. and 8:30 p.m. on June 6, 2016.

[92] This brings us to the appellant’s third issue in relation to the person to whom the accident must be reported. The appellant infers that “Minister,” within the meaning of the Regulations, refers to a ministerial delegate to whom the Minister delegated powers, duties or functions the latter is authorized to exercise or perform under subsection 140(1) of the Code.

[93] On this point, I agree with the appellant. Nevertheless, it is important to note that the qualified persons referred to in subsection 140(1) receive their powers on an ad hoc basis. These powers are delegated to them by the Minister for the purposes of Part II of the Code based on the terms specified at the time the powers are delegated. In other words, the Minister’s powers are delegated to a qualified person for a specific situation only, and the qualified person is not considered to exercise the Minister’s powers outside the scope of the specific mandate for which said powers were granted.

[94] Ms. Perrault was therefore not a ministerial delegate in this case because she was not responsible for this matter or even responsible for receiving notifications from employers for the purposes of Part XV of the Regulations. Consequently, it is wrong to claim that the appellant could report the accident to Ms. Perreault because she was not acting as a ministerial delegate when the appellant left her a voicemail message on her cell phone. The appellant was therefore not relieved of its duty to report to the Minister when it left a voicemail message on Ms. Perrault’s cell phone. The call should have been made to the official number of the Labour Program.

[95] The fourth and last issue raised by the appellant relates to the means of communication that must be used to report a work accident to the Minister.

[96] The Regulations state that the report can be done by telephone or telex. For its part, the appellant notes that Pamphlet 7 includes the possibility of reporting by fax. The appellant therefore assumes from the information in Pamphlet 7 that fax has replaced telex in the department, and that in its opinion, it is perfectly permissible to report to the Minister by leaving a voicemail message with Ms. Perrault. The appellant even says that this approach is similar to sending a message by fax.

[97] In my opinion, the appellant’s claims are wrong. No mention whatsoever is made in Pamphlet 7 that leaving a voicemail message with a Labour Program employee is a permissible means of communication to report a work accident. As mentioned earlier, the call should have been made to the official number of the Labour Program.

[98] The Minister’s delegation of powers under Part II of the Code is done in a predetermined and very specific fashion, leaving no room for improvisation. Receiving reports of accidents or hazardous occurrences is an important aspect of the Minister’s powers, duties or functions in Part II of the Code and a system for receiving calls on a 24/7 basis is in place.

[99] The appellant clearly knew that there is an emergency number for reporting work accidents, because it made a call to that number at 3:30 p.m., namely two hours after having left a voicemail message with Ms. Perreault. The toll free emergency number 1-800-641-4049 is available to federal employers by the Labour Program and calls are answered in person 24 hours a day for such things as work accident reports.

[100] The voicemail message left with a Labour Program employee at 1:30 p.m. is therefore not a report to the Minister.

[101] Did the appellant report to the Minister the work accident of June 6, 2016 causing a disabling injury to two or more employees as soon as feasible but not later than 24 hours after becoming aware of the accident, namely as soon as feasible but not later than 24 hours after 8:00 p.m./8:30 p.m.?

[102] I must answer no to this question because the appellant failed to demonstrate that it contacted the Minister as soon as feasible.

[103] According to the written submissions of both the appellant and the respondent, as well as the evidence submitted in this matter, several steps were taken by Expertech officials before the Labour Program was contacted. After going to the hospital the day of the accident, there was an exchange of emails between Mr. Mercure and Mr. Trépanier to discuss what was done with the broken pole. Around 7:00 a.m. the following morning, Mr. Trépanier went to Hydro-Québec to locate the boot of the broken pole. After finding it, Mr. Trépanier examined said pole boot.

[104] All of these steps, as well as a meeting described as a management meeting, the day after the accident, were taken even before contacting the federal authorities. So can we say that the Labour Program was informed as soon as feasible? I do not think so. The appellant failed to demonstrate the intention to act quickly in contacting the Labour Program. The evidence shows that, in the sequence of actions taken by Expertech after the accident occurred, the Labour Program was notified rather late, namely 19 hours after the incident.

[105] I will not address the concept of de minimis non curat lex raised by the appellant because the evidence before me has revealed that this is not a technical violation of the law.

[106] Because of the appellant’s inability to demonstrate that it reported to the Minister as soon as feasible a work accident causing a disabling injury to two or more employees, I confirm the second direction of June 15, 2016 issued by the ministerial delegate.

Decision

[107] For these reasons, the two directions issued to the appellant by ministerial delegate Régis Tremblay on June 15, 2016 are confirmed.

Jean Arteau

Appeals Officer

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