2017 OHSTC 25

Date: 2017-12-08

Case No.: 2017-33

Between:

Securitas Transport Aviation Security Ltd., Appellant

and

Alicia Doyle & Tracey Cleveland Wood, Respondents

and

Canadian Air Transport Security Authority, Applicant

Indexed as: Securitas Transport Aviation Security Ltd. & Canadian Air Transport Security Authority v. Doyle & Cleveland-Wood

Matter: Application for leave to participate in the proceeding as a party, or in the alternative, as an intervenor

Decision:  The application is granted

Decision rendered by: Marie-Claude Turgeon, Appeals Officer

Language of decision: English

For the appellant: Mr. Jack Graham, Q.C., Counsel, McInnes Cooper

For the respondents: Themselves

For the applicants: Mr. Brett Christen, Partner, Filion Wakely Thorup Angeletti LLP

Citation: 2017 OHSTC 25

Reasons

[1] This decision concerns an application by the Canadian Air Transport Security Authority (CATSA) to be added as a party in this appeal filed against a direction issued on September 2, 2017 by Ms. Mary Alice Clark, an official delegated by the Minister of Labour (ministerial delegate). The application was filed with the Tribunal on October 2, 2017.

[2] For the reasons that follow, I am of the view that the application should be granted.

Background

[3] On August 31, 2017, Alicia Doyle and Tracey Cleveland-Wood, both screeners employed by Securitas Transport Aviation Security Limited (STAS), refused to work because they were concerned about the levels of radiation emitted by a baggage screening device located at a passenger screening point. The work refusal took place in Enfield, Nova Scotia, at the Halifax International Airport (YHZ).

[4] In her work refusal, Ms. Doyle stated the following:

When the bins are going in and out the lead curtains are open at both ends when the x-ray is on. We sometimes are standing close to the tunnel when the curtains are open and NAV CAN would not test when the curtains were up.

[5] As for Ms. Cleveland-Woods’s work refusal, it stated the following:

I feel 100% the Rapiscan x-rays are unsafe […] The bigger bags will hold open both curtains and when one bag is being x-rayed the next is preventing the curtains from closing.

[6] On September 2, 2017, the ministerial delegate issued a direction to STAS that the use or operation of a machine or thing constituted a danger based on the investigation conducted following Mss. Doyle and Cleveland-Woods’ work refusals. The relevant excerpt of the direction reads as follow:

Employees may be exposed to radiation when the lead curtain of the Rapiscan Airport Security Baggage X-Ray Machine is prevented from closing due to the passenger bins being spaced less than 12 inches apart or the size of the bags impedes the closing of the curtain. Operation of the x-ray machine contrary to the requirements of Safety Code 29 and Rapiscan Operation Manual poses a danger to employees working in proximity to the x-ray machine.

Therefore, you are hereby directed, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take measures to correct the hazard or condition that constitutes the danger to no later than September 8, 2017.

[7] An application to appeal this direction by Ministerial Delegate Clark was filed with the Tribunal on September 29, 2017 by STAS.

[8] On October 2, 2017, CATSA filed submissions in support of a request to participate in the appeal as a party or in the alternative, as an intervenor.

[9] The respondents confirmed their intention to participate in the appeal and did not file any opposition to the granting of party status to CATSA.

Issue

[10] Should the applicant be added as a party or alternatively as an intervenor to this appeal?

Submissions of the applicant

[11] The applicant is a Crown corporation established as an agent of the Government of Canada pursuant to the Canadian Air Transport Security Authority Act (the Act). The applicant is responsible for the screening of non-passengers, airport workers, passengers and their baggage conducted at screening checkpoints at designated airports across Canada, including at YHZ, in order to prevent any person from transporting a threat item on an aircraft by placing such item on their person, in carry-on luggage, or in checked baggage. Those responsibilities will hereinafter be designated as “screening”.

[12] Under section 6(1) of the Act, CATSA’s mandate is described as follows:

The mandate of the Authority is to take actions, either directly or through a screening contractor, for the effective and efficient screening of persons who access aircraft or restricted areas through screening points, the property in their possession or control and the belongings or baggage that they give to an air carrier for transport. Restricted areas are those established under the Aeronautics Act at an aerodrome designated by the regulations or at any other place that the Minister may designate.

[underlining added]

[13] As mentioned in section 6(1), part of the applicant’s mandate is the effective and efficient screening of passengers. In order to deliver screening at YHZ, one of its screening points, CATSA states that it has contracted with STAS. The Act describes a screening point as follows:

A point where screening is delivered, either directly or through a screening contractor, by the Authority or by an authorized aerodrome operator acting on behalf of the Authority, in order to meet the requirements of aviation security regulations, security measures, emergency directions or interim orders made under the Aeronautics Act.

[14] CATSA explains that it owns and maintains the screening equipment at airports across Canada, including baggage x-ray machines, and is therefore responsible for the screening at YHZ, even though it is through STAS, a screening contractor. CATSA must still answer to its mandate under the Act by taking action to ensure efficient and effective screening. The applicant states that it cannot transfer responsibility for providing effective, efficient and consistent screening in the public interest, having regard to the interest of the traveling public, to a screening contractor.

[15] CATSA believes it has substantially the same interest as STAS in the present appeal because being the authority responsible for screening in Canada, it has an interest in taking steps to ensure that screeners are performing passenger screening safely in an effective and efficient manner, and as the owner of the screening equipment, it must take steps to ensure that screeners utilize screening equipment in accordance with CATSA’s procedures, safety protocols and regulatory obligations.

[16] The applicant claims that it must ensure its screening operations are maintained in accordance with section 27 of the Act at any of the designated airports, including YHZ, because of the importance of screening to the safety of the Canadian public:

27. The provision of screening at an aerodrome is conclusively deemed for all purposes to be a service that is necessary to prevent immediate and serious danger to the safety of the public.

[17] According to the applicant, its activities would be affected by a decision in respect of the x-ray machine at YHZ or of the procedures relating to the operation of the machine since the decision could impact the delivery of CATSA’s security screening mandate at YHZ and other Canadian airports.

[18] CATSA also believes its participation in the appeal should be permitted because it will assist in the resolution of the issue and will not cause prejudice to the parties. They argue they have a real, substantial and identifiable interest in how its equipment is utilized and has extensive knowledge of the equipment, its installation, use and maintenance.

[19] For the reasons aforementioned, CATSA requests to be granted the right to participate in the matter as a party, or in the alternative, to be permitted to intervene in the appeal on such terms as the appeal officer may consider advisable.

Analysis

[20] The power of the Tribunal to add a party to a proceeding stems from paragraph 146.2(g) of the Code that reads as follow:

146.2(g) For the purposes of a proceeding under subsection 146.1, an appeals officer may

[…]

(g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer’s opinion has substantially the same interest as one of the parties and could be affected by the decision;

[21] Accordingly, I must decide if the applicant has substantially the same interest as one of the parties, and if the applicant could be affected by a decision to the current appeal.

[22 ] CATSA’s mandate under the section 6 of the Act is clear: It must ensure “effective and efficient screening of persons who access aircraft or restricted areas through screening points”, and it is also responsible for “ensuring consistency in the delivery of screening across Canada”.

[23] The applicant contracts with STAS to perform the screening at YHZ. Consequently, STAS is responsible to carry out CATSA’s mandate at YHZ’s screening point, but CATSA must still ensure that STAS’ screeners are performing passenger screening safely and consistently with other screening points across the country.

[24] Moreover, the applicant is the owner of the baggage screening device that is subject to the respondent’s work refusal. The applicant developed procedures, safety protocols and regulatory obligations related to the use of its screening devices, and must ensure the equipment is used properly by the screeners. CATSA’s expertise is necessary in order to carry out this appeal.  

[25] I conclude that CATSA and STAS’ interests are substantially the same, as both entities are responsible to ensure effective and efficient screening at YHZ, through the use of the equipment provided and regulated by the applicant.

[26] Any decision in respect to the x-ray machine at YHZ or to the procedures relating to the operation of said machine would not only impact the delivery of CATSA’s screening mandate at YHZ, but also potentially at other screening points across Canada. This fact alone demonstrates that CATSA could be affected by a decision of the Tribunal relating to the current appeal.

[27] Because the applicant has substantially the same interest as STAS and could be affected by the decision, I am of the opinion that CATSA should be made a party to this appeal. As such, the applicant will be added as a party with full participatory rights in this appeal.

Decision

[28] The application to be made a party to the appeal is granted. Accordingly, the applicant will be added as an appellant.

Marie-Claude Turgeon

Appeals Officer

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