2018 OHSTC 6

Date: 2018-06-26

Case No.: 2018-08

Between:

Menzies Aviation Fuelling Canada Ltd., Applicant

Indexed as: Menzies Aviation Fuelling Canada Ltd.

Matter: Application for a stay of a direction issued by an official delegated by the Minister of Labour

Decision: The application for a stay is granted.

Decision rendered by: Mr. Olivier Bellavigna-Ladoux, Appeals officer

Language of decision: English

For the appellant: Mr. Julian Molinari, Menzies Aviation Fuelling Canada Ltd.

Citation: 2018 OHSTC 6

Reasons

[1] These reasons concern an application brought under subsection 146(2) of the Canada Labour Code (the Code) for a stay of a direction issued by Ms. Elizabeth Porto in her capacity as official delegated by the Minister of Labour (ministerial delegate) on February 23, 2018.

Background

[2] The direction was issued following an incident that occurred on January 16, 2018, with an employee of Menzies Aviation Fuelling Canada Ltd. (the employee) who is employed as an aircraft refueller. The employee was in the process of fuelling his second assigned aircraft, located at Gate C25 of Terminal 3 at Lester B. Pearson International Airport, when he noticed that the nozzle on the aircraft was leaking. While attempting to re-adjust the nozzle, which is designed to prevent leaking, it became disconnected from the aircraft, soaking the employee’s face with fuel. Fuel entered into the employee’s eyes, nose and mouth.

[3] On that same date, the Labour Program of Employment and Social Development Canada was made aware of the incident by a phone call from an inspector of the Ontario Ministry of Labour. The Labour Program duty officer subsequently contacted the employer and spoke to a manager by the name of Marc Day. The duty officer informed Mr. Day of the employer’s obligation to submit a Hazardous Occurrence Investigation Report to the Minister within 14 days after the hazardous occurrence, in accordance with section 15.8 of the Canada Occupational Health and Safety Regulations (COHSR).

[4] As the Labour Program had still not received the Hazard Occurrence Investigation Report, Ministerial Delegate Porto was assigned to investigate the incident and attended the workplace on February 20, 2018.

[5] Following her investigation, Ministerial Delegate Porto concluded that the employee was not wearing the appropriate type of face protection to mitigate the hazard of jet fuel exposure to the face. The employee was wearing Class 1A safety glasses at the time of the incident while the Material Safety Data Sheet provided by the employer identified face shields as the appropriate level of protection against exposure to jet fuel. As a result, she issued the following direction to the employer:

[6] On March 19, 2018, the applicant filed an appeal of Ministerial Delegate Porto’s direction accompanied by an application for a stay of the direction. It should be pointed out that there is no respondent participating in this appeal.

[7] The request for a stay was heard on April 5, 2018 by way of teleconference. At my request, the ministerial delegate attended the teleconference to provide an overview of the circumstances that led to the issuance of the direction under appeal.

[8] On April 6, 2018, I informed the applicant of my decision to grant the application for a stay of the direction until a decision on the merits of the appeal is rendered. I hereby set out the reasons for my decision.

Analysis

[9] The authority for an appeals officer to grant a stay is found in subsection 146(2) of the Code:

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

[10] The appeal officer’s discretion must be consistent with the purpose of the Code, which is articulated in section 122.1, which reads:

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

[11] A three part test developed by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 has been adapted and applied by appeals officers in regards to stay applications in the following manner:

1. The applicant must satisfy the appeals officer that there is a serious question to be adjudicated, as opposed to a frivolous or vexatious claim;
2. The applicant must demonstrate that significant harm would be suffered if the direction is not stayed; and
3. The applicant must demonstrate that measures will be put in place to protect the health and safety of employees or any person granted access to the workplace should the stay be granted.

1) Is the question to be tried serious as opposed to frivolous or vexatious?

[12] The issue raised by this appeal is whether the employer has contravened paragraph 125(1)(l) of the Code and section 12.6 of the COHSR by not providing its employees exposed to jet fuel the appropriate type of face protection. It can be said, based on the wording of her direction as well as the explanation she provided during the teleconference of April 5, 2018, that the ministerial delegate is of the view that only full face protection in the form of a face shield is appropriate to protect the employees from exposure to jet fuel in the performance of their duties of fuelling aircraft.

[13] The applicant is in complete disagreement with the ministerial delegate’s position and considers that the issuance of face shields is unnecessary in this particular case. The applicant has stated that it is prepared, if necessary to upgrade to Class 2B protective eyewear, which consists of tight-fitting eyewear meant to completely cover the eyes, eye sockets and skin surrounding the eyes to protect from impacts, particles and splashes.

[14] Accordingly, this appeal concerns the proper legal interpretation of the requirements of section 12.6 of the COHSR. For these reasons, I have no doubt that the question raised in this appeal is serious as opposed to frivolous or vexatious.

[15] I therefore consider that the first element of the test is satisfied.

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

[16] The applicant submits that it would suffer significant harm if the stay were not granted because the direction has national implications and will affect several of Menzies’ fuelling sites across the country. The applicant would have to provide face shields to over 500 of its employees before the case is heard on its merits. According to the appellant, this purchase would be irreversible and may turn out to be unnecessary in the event of a successful appeal.

[17] In addition, the applicant submits that there are safety concerns with regard to the provision of face shields that were not considered by the ministerial delegate in issuing her direction. According to the appellant, the wearing of face shields would create more harm than good because it would impede and distract its employees when they are performing the act of connecting the refuelling hose to the aircraft. This distraction could result in personal injury to its employees and damage to the aircraft. The applicant also claims that face shields would be an inconvenience to its employees in cold winter conditions or in the summer’s heat.

[18] The applicant thus submits that considering the very low probability that employees will ingest jet fuel, it would be preferable to wait until a final decision on the merits of the appeal before proceeding to purchase over 500 pieces of equipment that it considers unnecessary and unsafe.

[19] In my opinion, the applicant has demonstrated that it would suffer significant harm if it is to comply with the direction, pending the outcome of the appeals proceedings, for the reasons that follow.

[20] In a recent stay application decision¹, my colleague Pierre Hamel stated the following regarding the power of an appeals officer to stay a direction under subsection 146(2) of the Code.

[38] As I stated earlier, my discretion to grant a stay must be exercised in a way that supports the purpose of the Code and its respectful fundamental structure. Subsection 146(2) is drafted in a way that leaves no doubt as to the intent of Parliament to ensure that directions issued by the Minister (or his delegates) shall be complied with, in spite of an appeal having been filed. In doing so, it must be assumed that Parliament was cognizant of the fact that it was quite possible that a favourable decision on the merits of the appeal would in retrospect, render unnecessary the corrective measures taken in compliance of the direction.

[39] Exceptionally, such presumptive rule may be ousted in situations where a party, usually the employer, can establish serious harm resulting from such compliance. Accordingly, the seriousness of the harm and the appropriateness of a stay largely depend on the scope of the Minister’s order, the magnitude or nature of the measures that must be undertaken by the employer to comply with the direction and its impact on the employer’s operations.

[21] In the case at hand, I find that compliance with the direction issued by the ministerial delegate would cause more than a mere inconvenience to the employer as it would have a significant impact on the employer’s operations. Indeed, the direction, as worded, purports to have national implications for the employer who would have to replace the personal protective equipment worn by over 500 employees in over a dozen airports across the country, pending the resolution of its appeal.

[22] I have also taken into consideration the applicant’s contention that, in order to comply with the direction, it would have to provide a piece of equipment that it believes could jeopardize the health and safety of its employees. While this issue will be dealt with during the hearing on the merits of the appeal, I believe that it is relevant in assessing the harm that would be caused to the employer by having to comply with the direction before having the opportunity to present its case to an appeals officer.

[23] My conclusion on this criterion is also reinforced by one other consideration, namely, the fact that the incident that led to the issuance of the direction was an isolated one and is allegedly the result of a defective/damaged fuelling nozzle. Fuelling nozzles are generally designed to prevent the spraying of fuel.

[24] I thus consider that the applicant has fulfilled the second element of the test.

3) What measures will be put in place to protect the health and safety of employees or any person granted access to the workplace should the stay be granted?

[25] With regard to the third criterion, the applicant submits that it currently has measures in place to protect the health and safety of its employees. The broken fuel nozzle that caused the incident of January 16, 2018 has since been replaced and employees are provided with Class 1A protective eyewear. There is very little chance for employees to ingest fuel under normal circumstances. The employees are instructed to wear the issued protective eyewear while connecting fuelling hoses to aircraft and while fuelling the aircraft.

[26] After having careful examined this question, I am satisfied that the third criterion is met. I am persuaded by the applicant’s assertion that the granting of a stay would not jeopardize the health and safety of the employees pending the resolution of this appeal.

Decision

[27] The application for a stay of the direction issued by Ministerial Delegate Porto on February 23, 2018, is granted.

Olivier Bellavigna-Ladoux
Appeals officer