2018 OHSTC 3

Unobstructed view direction

[22] It is the position of the appellant that the obligations imposed under paragraph 125(1)(q) of the Code and subsection 14.25(b) of the Regulations only apply to a work place controlled by an employer. In this regard, the appellant notes that the area where the accident occurred is not a work place or part thereof controlled by the employer, and that as was held in Canada Post Corporation v. Canadian Union of Postal Workers, 2014 OHSTC 22, some obligations under subsection 125(1) can only be complied with at a work place that is under the control of an employer:

[23] Based on this interpretation of subsection 125(1) of the Code, the appellant submits that the control necessary for an employer to be imposed an obligation under paragraph 125(1)(q) of the Code does not extend to a work place to which the employer does not have exclusive access and over which the employer does not have authority or control.

[24] If the undersigned was to decide that paragraph 125(1)(q) of the Code and subsection 14.25(b) of the Regulations are applicable, the appellant argues that the evidence included in Ministerial Delegate Mordaunt’s report regarding the fact that the employee had an obstructed view of the area in which he was operating the tug is insufficient to meet the test of an appropriate direction.

[25] The appellant supports this argument with the following four points:

[26] The appellant further submits that, as a matter of fact, the evidence is clear that the containers located within a portion of the red hatched area did not obstruct the ramp agent’s view. On this issue, the appellant relies specifically on Mr. Alan Brown’s testimony when he stated as much, after a careful examination of photographs taken at the scene of the accident included in the ministerial delegate’s report. According to the appellant, Mr. Brown’s testimony in this regard should be given considerable weight given his role as a deputy ramp supervisor for Swissport at the airport and his experience in accident reconstruction work as a former police officer.

[27] It is also the appellant’s position that concluding that the ramp agent’s view was obstructed would be a determination of which driver, i.e. the ramp agent or the fuel pump truck operator, had the right of way, while the ministerial delegate made it clear throughout her investigation and during her testimony that she remained uncertain as to which driver had the right of way.

[28] Concerning the issue of the right of way, the appellant also points out that Ministerial Delegate Mordaunt was advised on September 16, 2015 by two Greater Toronto Airports Authority (GTAA) officials that the ramp agent was the one who had the right of way at the location of the accident, and that this is also what an entry into her activity log reflects. It is Swissport’s submission that this evidence does not support the ministerial delegate’s conclusion that the ramp agent’s view was obstructed and that this was a contributing factor to the accident. Indeed, as the driver who had the right of way, the ramp agent could reasonably have expected that the driver of the fuel pump truck would yield to him, which would have avoided the accident. For this reason, the appellant argues that the unobstructed view direction is based on mere conjecture and the after-the-fact erroneous reliance on the Consolidated employee’s view that he had the right of way.

[29] According to Swissport, the fact that the driver of the fuel pump truck was an experienced driver of lengthy service and the employee had just received his AVOP licence is not an objective justification to come to a decision about who had the right of way at the time of the accident. As such, the appellant argues that the ministerial delegate erroneously relied upon the evidence provided by the driver of the fuel pump truck to conclude that the ramp agent had an obstructed view and that this issue was a contributing factor to the accident. Swissport submits that, as a whole, the evidence indicates that it was the failure of the Consolidated driver to yield that resulted in the accident.

Equipment training direction

[30] With respect to the second direction, the appellant indicates that subsections 14.23(1) and 14.23(3) differ from one another in two significant respects. First, subsection 14.23(1) refers to “motorized materials handling equipment” while subsection 14.23(3) refers to “manual materials handling equipment.” Second, only subsection 14.23(3), the provision that applies to manual materials handling equipment, requires on-the-job training.

[31] The phrase “materials handling equipment” is defined at section 14.1 of the Regulations:

[32] The appellant points out that Part XIV of the Regulations makes a distinction between “motorized” and “manual” materials handling equipment, and that it is clear that the only piece of equipment at issue in the equipment training direction is the tug, which Ministerial Delegate Mordaunt admitted to be motorized materials handling equipment during her cross-examination.

[33] The appellant therefore alleges that the second part of the direction is without foundation since there was no manual materials handling equipment involved in this case, and that as to the first part of the direction concerning the training for operators of motorized materials handling equipment, the evidence shows that the training received by the employee was substantially the same as suggested by the tug’s manufacturer and even modified to meet the needs of the work place, as required by the Regulations.

[34] The evidence referred to by the appellant concerning the first part of the direction consists mainly of Mr. Paul Gorr’s testimony in which the latter stated he had provided training to the ramp agent on the tug as part of the ramp specific course titled RA04 - CCT/BCT/PDT, Baggage/Cargo Cart/Pallet Dolly. Mr. Gorr is a training supervisor at Swissport. The appellant also relies on the evidence of Messrs. Riley and Brown who both testified to the on-the-job training provided to the ramp agent on all materials handling equipment operated by Swissport.

Repair direction

[35] Regarding the repair direction, the appellant submits that Ministerial Delegate Mordaunt did not identify any evidence to support her contention that the tug had a defect requiring that it be taken out of service until it had been repaired or modified by a qualified person or that there had ever been any repair, modification or replacement of a part of the tug.

[36] The appellant then submits that all Swissport employees are trained to wear seatbelts and not use any equipment that is damaged or unsafe, that there is no evidence of any safety defect relating to the seatbelt on the tug and that if such defect existed, it would have been reported and repairs made.

[37] The work orders produced by Swissport clearly identify, according to the appellant, the preventative maintenance and repair work performed on the tug: none of that work was in connection with the seatbelt, and the inspection of the tug by an independent third party shows that the seatbelt was in good operating condition at the time of the accident; it had only been tucked in the curtain frame to keep it out of the way.

[38] The appellant concludes its submissions regarding the repair direction by noting that the ministerial delegate even failed to examine the seatbelt to verify if it was operative or not. Accordingly, Swissport submits that the repair direction is not based on the evidence and, thus, without foundation.

Education direction

[39] The appellant concludes from the ministerial delegate’s testimony that the education direction was issued because she was never satisfied that Swissport employees had received the training required by the AVOP. However, Swissport asserts that this is not the case and that, therefore, there is no factual foundation underpinning the issuance of this direction.

[40] First, the appellant suggests that paragraph 125(1)(z.03) of the Code has nothing to do with an obligation to provide education to an employee before that employee is assigned at a new activity or is exposed to a new hazard contained at paragraph 19.6(2)(b) of the Regulations. Paragraph 125(1)(z.03) of the Code pertains to the obligation to develop, implement and monitor, in consultation with the policy committee, or, if there is no policy committee, with the work place committee, a program for the prevention of hazards in the work place. The appellant considers there is no evidence to substantiate any failure on the part of Swissport to have developed a program for the prevention of hazards in the work place in consultation with its work place committee.

[41] The appellant further submits that the evidence clearly shows the ramp agent had received detailed training before being assigned the task of driving a tug. That training consisted of an orientation training which included safe operation of a vehicle, his on-the-job training during which he had the opportunity to learn how to safely operate the tug by observation and discussion, and the classroom and practical training required to obtain an AVOP licence. In Swissport’s view, the uncontroverted evidence is that the training provided to the ramp agent met the regulatory requirements.

Unobstructed view direction

[45] The unobstructed view direction was based on paragraph 125(1)(q) which refers to specific obligations set out in the “prescribed manner”, that is, through the Regulations. This paragraph reads as follows:

[46] In turn, the relevant provision of the Regulations which was contravened by Swissport according to Ministerial Delegate Mordaunt is subsection 14.25(b). This provision reads as follows:

[47] Therefore, for this direction to be well founded, the evidence must demonstrate that Swissport required the ramp agent who operated the tug (who, it is not disputed, was an “operator” of “motorized materials handling equipment”) to perform his duties in an area where his view was obstructed. Given the ministerial delegate’s conclusion, a key factual issue is whether the containers and dollies that were, as was acknowledged by Swissport, parked in the area with red hatched markings outside of gate C31 of the airport actually obstructed the view of the corridor where the ramp agent was about to turn immediately before the accident. To the extent that the evidence before me shows that it was not the case, then there would simply be no factual basis to confirm this direction.

[48] In this regard, I note that in her testimony at the hearing, Ministerial Delegate Mordaunt did not unequivocally or conclusively state that the equipment left in the area with red hatched markings on the ground obstructed the view of the ramp agent. Her evidence was that she was concerned that the equipment parked in that area “may have contributed” to the ramp agent’s having an obstructed view of his intended path of travel. When examined by the undersigned, she further testified that “unless they were going slowly”, the ramp agent and the Consolidated driver would not “likely” have been able to see each other. In cross-examination, she reiterated her view that the equipment in the red hatched area “may” have obstructed the view of the ramp agent.

[49] Clearly, Ministerial Delegate Mordaunt’s evidence on this issue merely raises the possibility that the ramp agent did not have an unobstructed view of the area in which he was operating the tug at the time of the accident. She seems to have assumed that the presence of the equipment in the red hatched area was a contributing factor to the accident, but she did not appear convinced that this was actually the case.

[50] In my opinion, one cannot conclude from her evidence that Swissport failed to ensure that the ramp agent had an unobstructed view of the area where he was operating motorized materials handling equipment. At best, Ms. Mordaunt’s evidence suggests that the presence of equipment within a portion of the red hatched marked area was a concern of hers (as the airport’s rules prohibit leaving materials in areas with red hatched markings on the ground), but a concern of or a hypothesis by a ministerial delegate is insufficient to support a finding that Swissport contravened subsection 14.25(b) of the Regulations. Cogent evidence that an employer failed to ensure that its employee had an unobstructed view of the area where motorized materials handling equipment was operated is necessary.

[51] There is no such evidence in this case. In fact, the evidence before me convincingly establishes that, quite to the contrary, the ramp agent’s view was not obstructed by the equipment, mainly containers, left in the area with red hatched markings. This is clear from the photographs of the scene of the accident included in the ministerial delegate’s report and the testimony of Mr. Brown at the hearing.

[52] In particular, after having carefully examined the photographs, the location of the traffic lanes and corridors at issue in this appeal, and the rules of the roads governing traffic on such corridors and lanes and, finally, having factored in the location and dimension of the containers and other equipment left on the ground, Mr. Brown indicated that the ramp agent’s view was not obstructed at the time of the accident. His evidence clearly showed that for a distance of at least 30 feet before the site of the accident, the ramp agent would have been able to see the Consolidated truck and that the Consolidated truck’s driver would have been able to see him, despite the presence of containers in the area. According to his testimony, the containers shown on the pictures did not therefore cause a view obstruction for anyone involved.

[53] Mr. Brown was also able to demonstrate, on the basis of his analysis of the collision scene using pictures and considering the line of sight at the scene, combined with the low maximum speed of the tug (25 km/h), that any partial view obstruction due to containers protruding in the red hatched area was not a factor contributing to the accident. I find that Mr. Brown’s evidence on this issue was compelling. I also find that this evidence rebuts Ministerial Delegate’s Mordaunt’s statements and apparent assumptions underpinning her conclusion that Swissport failed to ensure the ramp agent had an unobstructed view of the corridor onto which he was about to turn immediately before the accident.

[54] Therefore, I completely accept Mr. Brown’s evidence on the absence of any meaningful view obstruction and conclude that the unobstructed view direction was issued without an appropriate factual foundation. It must be rescinded on that basis alone.

[55] I also accept Swissport’s argument that this direction was predicated upon Ministerial Delegate Mordaunt’s apparent belief that it was the Consolidated driver who had the right of way at the time and place of the accident. However, the evidence indicates that she was told by airport officials during her investigation that it was the ramp agent who had the right of way. In fact, the totality of the evidence before me establishes that there was no confusion on the issue of the right of way. According to the airport rules explained to all operators of motor vehicles, the right of way where two main corridors intersect (the relevant location in this case) belongs to the vehicle on the right side, which was the tug operated by the ramp agent when the accident occurred.

[56] Accordingly, the ramp agent could reasonably expect that the Consolidated driver would yield to him. The fact that the latter did not appears to constitute the main cause of the accident. This fact also undermines the ministerial delegate’s speculation that the ramp agent not having an unobstructed view of the area was a contributing factor to the accident.

[57] In view of my conclusion that the unobstructed view direction is not supported by the facts and evidence, it is not necessary, in order to resolve this appeal, to consider Swissport’s argument that the regulatory obligation at issue was not applicable in this situation because an obligation of this nature can only apply when an employer controls both the work place and the activity to be performed by its employees. Swissport claimed that, in this case, it only had control over the activity performed by the ramp agent. However, I will make a few comments on this issue.

[58] It is true that the evidence makes it clear that the Greater Toronto Airports Authority (GTAA) controlled the work place. Indeed, the red hatched areas are under the control of the GTAA and there is no evidence that the containers left in those areas were placed there by Swissport or that Swissport was somehow responsible for their removal. Consequently, if the removal of containers potentially encroaching the view of motor vehicle operators was necessary (in other words, if enforcement was required), it should logically be the GTAA’s responsibility.

[59] While I see some merit to Swissport’s position in this regard given that it clearly did not have the ability to control any obstruction caused by equipment left in the red hatched areas by another corporate entity, I note that the decision of the appeals officers in Canada Post Corporation v. Canadian Union of Postal Workers, 2014 OHSTC 22  relied upon by Swissport as the authority supporting its position has been overturned by the Federal Court of Appeal (see Canadian Union of Postal Workers v. Canada Post Corporation, 2017 FCA 153). This decision is currently being challenged by the Canada Post Corporation through an application for leave to appeal before the Supreme Court of Canada. In the circumstances, and until this issue is definitely settled by the courts, it is prudent to refrain from making any pronouncements based upon the appeals officer’s interpretation that the obligations in some paragraphs under subsection 125(1) of the Code can only be carried out at a work place that is under the control of an employer.

Equipment training direction

[60] The equipment training direction lists two contraventions. Both contraventions are breaches of provisions of the Regulations prescribing the manner in which an employer is to provide its employees with the information, instruction, training and supervision necessary to ensure their health and safety under paragraph 125(1)(q) of the Code.

[61] The relevant provisions of the Regulations read as follows:

[62] As noted above, subsection 14.23(1) governs training for the use of motorized materials handling equipment whereas subsection 14.23(3) governs training for the operation of manual materials handling equipment. A key fact that was established by Swissport’s evidence is that only motorized materials handling equipment, namely a particular model of a tug (TUG Model MA-42, according to the direction) is at issue in this case. Ministerial Delegate Mordaunt even conceded in cross-examination that the tug is a piece of motorized materials handling equipment.

[63] Given that there was no manual materials handling equipment involved, either directly or indirectly, in the accident and the lack of evidence that the ramp agent was, at any time, an operator of manual materials handling equipment requiring on-the-job training on such equipment, there was no legal and factual basis for the ministerial delegate to conclude that Swissport contravened subsection 14.23(3) of the Regulations. Accordingly, since it is based on a clear misapprehension of the facts and of the applicability of subsection 14.23(3), the second component of the equipment training direction must be rescinded.

[64] Turning to the first component, the contravention to subsection 14.23(1) of the Regulations, there is no question that this is an applicable provision in the circumstances of this appeal given the type of materials handling equipment at issue. However, the question before me is whether the evidence demonstrates that Swissport failed to comply with it.

[65] In this regard, it is clear from her testimony at the hearing that Ministerial Delegate Mordaunt predicated her direction on the provision of inadequate training with respect to the operation of the tug primarily on her belief that Swissport was in contravention of the Regulations for having failed to provide the tug manufacturer’s manual, or any relevant portion of it, to the ramp agent. She emphasized that she had to contact the manufacturer to obtain a complete copy of this manual.

[66] Thus, she interpreted subsection 14.23(1) of the Regulations to mean that there is an obligation on employers to provide the actual manufacturer’s operating manual, or excerpts from it, to their employees as part of their training on the safe and proper use of motorized materials handling equipment. However, in my opinion, this is not what this provision entails.

[67] By its plain terms, subsection 14.23(1) requires employers to ensure that an operator of motorized materials handling equipment has been instructed and trained in the procedures to be followed for the safe and proper use of such equipment “in accordance with any instructions provided by the manufacturer and taking into account the condition of the work place” in which the operator will perform the work activity. Thus, in order to conclude that this provision had been contravened, cogent evidence that the training and instructions at issue were not in line with the instructions provided by the manufacturer is necessary. While it may be useful, the provision of a manufacturer’s operating manual to employees is not mandatory. What matters is that the training be consistent or in keeping with any instructions provided by the manufacturer of materials handling equipment.

[68] In this regard, Ministerial Delegate Mordaunt acknowledged during her cross-examination that she did not compare, at any time during her investigation, the training provided by Swissport to the ramp agent with respect to the inspection, fueling and safe operation of the tug against the provisions of the manufacturer’s manual for this piece of materials handling equipment. Therefore, she never examined whether the training provided by Swissport was in accordance with the instructions provided by the manufacturer as required by subsection 14.23(1) of the Regulations. I find that this fact alone casts serious doubt on the merits of the equipment training direction.

[69] What is more, the evidence provided by Swissport’s witnesses at the hearing was unanimous and compelling: the training received by the ramp agent was substantially the same as that suggested by the manufacturer of the tug and was adapted, as required by the Regulations, to meet the needs of the workplace. In particular, Mr. Gorr stated that there are two generic courses dealing with the safe operation of a vehicle such as a tug and described the detailed contents of such courses. He further indicated that after having completed these courses, the ramp agent had clear instructions with respect to the requirements of Swissport and the manufacturers with respect to the fueling, pre-use inspection and safe operations of all vehicles operated by Swissport, including a tug.

[70] Mr. Gorr also confirmed that the requirements and elements covered in Swissport’s training courses and materials were substantially identical to the tug manufacturer’s instructions. He added that his comparative analysis of the documents revealed that not only were the instructions and training provided by Swissport consistent with the instructions provided by the manufacturer, but that they were also adjusted to take into account the specific conditions of the work place where the equipment is operated. He provided numerous examples, including training on human and external factors awareness, safe driving, headsets and hand signals, chocks and cones, load restraints, and baggage sortation. Mr. Riley convincingly corroborated Mr. Gorr’s statements and explanations on those important points.

[71] On the basis of this evidence, I am persuaded that Swissport complied with the obligation set out in subsection 14.23(1) of the Regulations and, therefore, find that the first component of the equipment training direction must also be rescinded.

Repair direction

[72] Paragraph 125(1)(k) of the Code imposes upon an employer certain obligations with respect to the safety of vehicles and mobile equipment used by their employees. Specifically, an employer shall:

[73] In this case, the relevant “prescribed standards” are set out at section 14.29 of the Regulations, which notably provides the following:

[74] Ministerial Delegate Mordaunt concluded that Swissport contravened subsection 14.29(1) by failing to ensure that the “seatbelts were in working conditions on the tug while it was still in service.” She also found that Swissport contravened subsection 14.29(2) by failing to ensure that “the seatbelts are maintained when modifying equipment.”

[75] However, her findings are not supported by the evidence before me. Quite to the contrary, the evidence makes it clear that there was no factual basis for Ministerial Delegate Mordaunt to issue the repair direction.

[76] First, Ms. Mordaunt did not provide any evidence that, at any time, she examined the seatbelt of the tug in order to see if, as a matter of fact, it was inoperative or if it required repairs or modification by a qualified person. Moreover, at the hearing, she did not testify that the tug had a defect requiring that it be taken out of service until it had been repaired or modified by a qualified person. She appears to have assumed that the seatbelt was defective because it looks to have been wedged into the frame of the tug on some pictures taken shortly after the accident.

[77] However, the evidence is clear that the seatbelt was not wedged into the frame but was, instead, only stuck underneath a metallic panel and was operative. This was confirmed by Mr. Brown who stated that the seatbelt was not defective. The inspection of the tug by an independent third party also indicates that the seatbelt was in good operating condition. In short, there is no evidence of any safety defect relating to the seatbelt on the tug. It appears that someone had simply tucked one end of the seatbelt underneath a metallic panel to keep it out of the way. The fact the seatbelt was out of position does not mean that it was defective and necessitated repairs.

[78] Since the seatbelt on the tug was never rendered inoperative or necessitated repairs or modification according to the evidence, it is not possible for the undersigned to concur with Ministerial Delegate Mordaunt’s conclusion that Swissport failed to ensure that the seatbelts were in working conditions while it was still in service. In fact, the uncontroverted evidence is that Swissport employees are trained to wear seatbelts and not to use any equipment that is damaged.

[79] Thus, I accept Swissport’s submissions that Ministerial Delegate Mordaunt’s conclusion that it did not comply with subsection 14.29(1) of the Regulations is not based on the evidence and, rather, rests in large part on an ill-advised assumption on the part of the ministerial delegate that the ramp agent was not wearing the seatbelt because it was defective. For this reason, the first part of the repair direction must be rescinded.

[80] Second, the foregoing analysis also establishes that there is no evidence of any repair, modification or replacement of any part of the tug that would have triggered the employer’s obligation to ensure that any such repair, modification or replacement maintain the “safety factor of the materials handling equipment or part” referred to in subsection 14.29(2) of the Regulations.

[81] Accordingly, I find that the repair direction must be rescinded in its entirety.

Education direction

[82] Paragraph 125(1)(z.03) of the Code provides that an employer shall:

[83] In turn, paragraph 19.6(2)(b) of the Regulations provides precise information on the type of “education of employees in health and safety matters” that an employer is required to deliver. This provision reads as follows:

[84] Ministerial Delegate Mordaunt concluded that Swissport contravened this provision by failing to ensure that the ramp agent was provided with education prior to being permitted to drive materials handling equipment, that is, specifically, the tug. With respect, I find that this conclusion is not borne out by the evidence and is, therefore, incorrect.

[85] The evidence is clear and undisputed that the ramp agent received both the training required under the AVOP rules and Swissport’s specific training for all the vehicles that may be operated by its employees, including the tug. By and large, the evidence given by the four Swissport witnesses at the hearing, some of whom were personally involved as the individual trainers of the ramp agent, indicates that he received comprehensive and detailed education and training with respect to the health and safety matters related to the operation of a tug at the airport. Such education and training were provided shortly prior to the ramp agent being assigned the task of driving a tug.

[86] In summary and according to the evidence, that training program consisted of:

[87] That the education provided by Swissport to the ramp agent amply met its regulatory obligations was clearly demonstrated in the testimony of Messrs. Gorr, Riley and Gill. I note in particular Mr. Riley’s statement that the tug is a pretty basic vehicle to operate and that the ramp agent was fully trained in its safe use and operation at the time of the accident. His testimony in this regard was corroborated by the other witnesses.

[88] Mr. Riley also testified that on August 12, 2015, he was the one who administered the AVOP practical test for the ramp agent. He included all of the items of the test on a detailed practice exam form, which was adduced as evidence at the hearing. Mr. Riley wrote an annotation on the form stating “Great Test.” The ramp agent was educated and evaluated on and, ultimately, demonstrated a clear understanding of specific criteria that included the following:

[89] In view of the foregoing, there is no doubt that Swissport provided the ramp agent with the appropriate and required education prior to assigning him the task of operating motorized materials handling equipment such as the tug. In the absence of any factual and evidentiary underpinning Ministerial Delegate Mordaunt’s conclusion that Swissport contravened paragraph 19.6(2)(b) of the Regulations, the education direction cannot stand and must be rescinded.