2019 OHSTC 12
Case Nos.: 2018-39
Between: Canadian Pacific Railway Company, Applicant
Indexed as: Canadian Pacific Railway Company
Matters: 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 applicant: Mr. Matthew J. Macdonald, Legal Counsel, Canadian Pacific Railway Company
Citation: 2019 OHSTC 12
 The present application for a stay concerns a direction that was issued on October 30, 2018, by Mr. Jean Nodorakis, in his capacity as an official delegated by the Minister of Labour (ministerial delegate). The applicant filed an appeal of this direction on November 28, 2018, and applied for a stay of the direction on April 17, 2019. The present reasons relate to the stay application.
 On April 18, 2019, I granted the stay application. Here are the reasons for my decision.
 On November 17, 2017, the ministerial delegate began conducting an investigation into an accident that occurred on November 8, 2017, at the applicant’s yard in Côte Saint-Luc, Quebec. The accident caused the death of Mr. Dimitrios Bakirtzis, one of the applicant’s employees. Mr. Bakirtzis was part of a three-man crew responsible for the marshalling and switching of rolling stock.
 On December 6, 2017, a series of preliminary technical readings were taken by the ministerial delegate and showed that lighting levels were below the minimum prescribed in the On Board Trains Occupational Health and Safety Regulations (the Regulations). Based on these readings, the ministerial delegate determined that a technical survey of the levels of lighting in the yard was necessary.
 On May 8, 2018, the ministerial delegate carried out the technical survey accompanied by Ms. France De Repentigny, an industrial hygiene technologist at Employment and Social Development Canada. The applicant’s work place committee employee co-chair, and a work place committee employee member attended the technical survey. No employer representative was present. All the technical readings were taken exclusively in the area known as the North Departure, or Diamond, of the St. Luc Yard, where the accident happened, and where the majority of railway switches that yard employees are required to use are found. The technical survey readings demonstrated that the applicant’s lighting system did not provide the minimum levels of lighting prescribed by the Regulations.
 On October 30, 2018, following his investigation, the ministerial delegate identified contraventions to paragraph 125(1)(n) of the Code and to subsections 3.1 and 3.4 of the Regulations. He issued a direction under subsection 145(1) of the Code that reads a follows:
In the matter of the Canada Labour Code
Part II - Occupational Health and Safety
Direction to the employer under subsection 145(1)
On May 8, 2018, the undersigned official delegated by the Minister of Labour was present while an Industrial Hygiene Technologist conducted a test into the levels of lighting, as part of an investigation into the work place fatality of an employee employed by Canadian Pacific Railway Company, being an employer subject to the Canada Labour Code, Part II, at the employer's work place located at 5901 Westminster Avenue, Montreal, Quebec, H4W 2J9, the said work place being sometimes known as St-Luc Yard.
The said official delegated by the Minister of Labour is of the opinion that the following provisions of the Canada Labour Code, Part II have been contravened:
Paragraph 125 (l)(n) of the Canada Labour Code Part II, subsection 3.1(1) - On Board Trains Occupational Health and Safety Regulations.
The employer did not ensure that the levels of lighting at St-Luc Yard were in accordance with prescribed standards. The lighting system installed by the employer does not provide the prescribed levels of lighting required for areas where employees are engaged in the flagging, switching and marshalling of rolling stock.
Paragraph 125 (l)(n) of the Canada Labour Code Part II, subsection 3.4 - On Board Trains Occupational Health and Safety Regulations.
The average level of lighting observed at St-Luc yard is below the value of 50 lux, as is required for areas where employees are engaged in the flagging, switching and marshalling of rolling stock. Fifty-two (52) readings were taken in the area known as north of the departure yard, where employees are routinely engaged in switching activities, and the average level of lighting was 7.7 lux.
Therefore, you are hereby directed, pursuant to paragraph 145(l)(a) of the Canada Labour Code, Part II, to terminate the contraventions no later than May 1st 2019.
Further, you are hereby directed, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time specified by the Official Delegated by the Minister of Labour, to take steps to ensure that the contravention does not continue or reoccur.
Issued at Dorval, this 30th day of October, 2018.
Official Delegated by the Minister of Labour
 The applicant filed an appeal of that direction with the Tribunal on November 28, 2018, and applied for a stay of the direction on April 17, 2019. The stay application was filed along with detailed written submissions, answering the issues to be addressed in the three-part test used by appeals officer when exercising their discretion to grant the stay of a direction. The Tribunal contacted the union representing the yard employees but the union indicated that it did not wish to act as a respondent in this appeal. There is no respondent in this case.
 On April 18, 2019, I informed the applicant of my decision to grant the stay application pending a decision on the merits of the appeal. A hearing into that matter had already been scheduled for the week of June 18 to 21, 2019. What follows are the reasons for my decision.
 The authority for an appeals officer to grant the stay of a direction 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.
 In exercising the discretion conferred by subsection 146(2), appeals officer must keep in mind the preventative purpose of Part II of the Code, which is articulated at its section 122.1:
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.
 Appeals officers have adopted a three-part test derived from the Supreme Court of Canada’s decision in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,  1 SCR 110. The three parts of the test are as follows:
- 1. the applicant must satisfy the appeals officer that the question to be tried is serious as opposed to frivolous or vexatious
- 2. the applicant must demonstrate that it would suffer significant harm if the direction is not stayed by the appeals officer
- 3. the applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place
 I will use this test in order to guide my discretion under subsection 146(2) of the Code to grant the stay of the direction issued to the applicant.
Is there a serious question to be tried as opposed to a frivolous or vexatious claim?
 In regards to the first part of the test, the applicant submits that the appeal raises four issues that are serious enough to show that the question to be tried is not a frivolous or vexatious claim. First, the applicant states that the direction is not specific enough to allow the applicant to know what needs to be done to achieve compliance with the Code. Second, the applicant argues that complying with the direction is not reasonably practicable. Third, the applicant claims that the method used by the industrial hygiene technician and the ministerial delegate to measure the prescribed lighting in the work place was erroneous. Fourth, the applicant believes there was a breach of procedural fairness because no specifics were provided as to how the lighting tests were performed.
 The questions raised by the applicant as to how to achieve compliance with the direction issued by the ministerial delegate and the methods of testing performed by the industrial hygiene technician are legitimate, as opposed to frivolous or vexatious. The threshold to meet the first criterion of the test is relatively low and I am of the view that it has been met.
Would the applicant suffer significant harm if the direction is not stayed?
 In regards to the second part of the test, I retain what follows.
 The applicant determined that a minimum of four additional lighting towers at a cost of $600,000 or more could be required to comply with the direction. The applicant states that the construction of the towers could not be started during the compliance period imposed by the ministerial delegate because the compliance period overlaps with winter, during which the ground is frozen. The applicant claims it would be an undue and significant hardship to commence the construction and installation of lighting towers, to later find out that they were either not needed or insufficient to ensure compliance with the direction. The applicant also believes that the construction of the lighting towers would be an operational burden not imposed on its competitors and other industry players.
 The applicant raises the decision in Termont Montréal Inc. v. Syndicat des Débardeurs, SCFP, section locale 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (Termont),and asks that when I assess the risks of staying the direction versus the harm that would ensue if the stay were not granted, I take into consideration the long timeline allowed for compliance and the fact that the direction was issued pursuant to subsection 145(1) of the Code and not out of a finding of imminent danger under subsection 145(2). The appeals officer in Termont wrote the following:
[…] In the case before us, the direction was issued pursuant to subsection 145(1) of the Code, citing a violation of a prescribed standard, rather than a condition presenting danger to the workers, as defined in the Code. I am not minimizing how important it is for an employer to comply with prescribed health and safety standards; he is obliged to do so. However, the distinction that I am making strikes me as relevant when assessing the risks attached to staying a direction, versus the harm that would ensue if the stay were not granted. I also point out that the respondents are not contesting the scope and complexity of the measures that Termont would have to take to comply with the direction, nor the substantial costs, considered objectively, that those measures would entail.
 The Termont decision also dealt with the improvement of lighting levels in the work place. The applicant states that in Termont, impossibility or inability to comply with a direction was found to constitute a significant harm. In Termont, the appeals officer wrote the following:
 In my opinion, the arguments put forward by the Applicant convincingly demonstrate that Termont would suffer significant harm if the stay were not granted. Apart from the fact that it appears to be impossible to comply with the direction in the short term, due to weather conditions and the engineering work that would be required, the cost of such an undertaking would be considerable. Let me be clear: cost alone would not justify the stay of a direction, as appeals officers have ruled repeatedly when dealing with applications for a stay. But it seems to me that the whole set of factors invoked to substantiate the harm that Termont would suffer, for example, the major expense to be incurred in building new towers, the complexity and scope of the work involved, the legal complexities relating to the fact that Termont is not the owner of the premises, the risks stemming from the interim lighting arrangements and the considerable economic loss that would result if Termont were to modify its operations as described above, convince me that the harm that Termont would suffer if the Application were rejected would be, in my opinion, very significant.
 At this early stage the proceedings, before the merits of the appeal have been heard, I rely heavily on the ministerial delegate’s report and the applicant’s submissions and statement of facts. The applicant states that, in order to comply with the direction, a minimum of four additional lighting towers at a cost of $600,000 or more would be required. Appeals officers have ruled repeatedly that cost alone or an alleged competitive disadvantage does not justify the stay of a direction (Termont; Cameron Air Service Ltd., 2017 OHSTC 20). However, I agree with the applicant that in the circumstances of the present case, accepting that the applicant would have to erect lighting towers in order to comply with the direction, the construction of these towers would have an important impact on the applicant’s operations in the yard.
 Taken together, I am of the opinion that the inability of the applicant to commence the construction of the towers during in the winter months, the cost associated with the construction of the lighting towers and the impact on the applicant’s operations in the yard would cause significant harm to the applicant if the direction were not stayed.
 The direction being appealed was issued pursuant to subsection 145(1) of the Code,citing a contravention to the Regulations, rather than pursuant to subsection 145(2) of the Code,identifying an activity that constitutes a danger to employees. Employers are obliged to comply with prescribed health and safety standards. However, as the appeals officer expressed in Termont, the distinction between the issuance of a direction pursuant to subsection 145(1) of the Code versus a direction issued pursuant to 145(2) is relevant when assessing the risks attached to granting the stay of a direction. A direction issued pursuant to subsection 145(1) of the Code is less indicative of a high risk situation than a direction issued pursuant to subsection 145(2).
 Moreover, the extended compliance period of roughly 7 months provided for in the direction is also indicative as to the level of risk posed by the contraventions identified by the ministerial delegate during his investigation.
 Taking into consideration the 7-month timeline allowed by the ministerial delegate for compliance; the fact that the union representing the yard employees decided not to participate as a respondent in these proceedings; and the issuance of a contravention direction under subsection 145(1) of the Code as opposed to a danger direction under subsection 145(2) of the Code, I am of the view that ordering a stay of the direction until a hearing on the merits takes place would not represent a high risk to the employees of the St-Luc Yard. Collectively, these factors lead me to believe that the significant harm that the applicant would suffer were I to deny the stay application outweighs the low risks attached to staying the direction.
 For these reasons, the second criterion of the test to stay the direction is met.
Has the applicant demonstrated that measures will be put in place to protect the health and safety of employees or any person granted access to the work place, should the stay be granted?
 The third part of the test deals with the protective measures to be put in place should a stay of the direction be granted pending determination of the appeal. The applicant submits that less stringent measures are required in the present case because the direction issued is a contravention direction, as opposed to a danger direction, and because the ministerial delegate allotted a long 7-month timeline for the applicant to achieve compliance. The applicant also argues that the relevant union declined to act as a respondent in this case, which confirms a lack of measurable danger in the work place.
 The applicant also submits that, instead of using incandescent lanterns, the applicant has issued a bulletin and mandated that only LED lanterns be permitted at the yard, which exceed the performance of the lanterns used by similar industry participants. The applicant is also confirming that it is prepared to install more lighting as soon as the weather conditions permit and when there is certainty about how many lighting towers should be installed.
 I do not completely agree with the applicant that “less stringent measures” are required to protect the health and safety of employees or any person granted access to the work place because (1) the ministerial delegate allotted a generous timeline for compliance; (2) the direction was issued pursuant to subsection 145(1) of the Code; or (3) the union refused to act as respondent, but I find nonetheless that the third criterion of the test has been met. Lanterns are widely used in the operation of railway yards. I am satisfied that the LED lanterns provided by the applicant will help prevent injury to the health and safety of employees and persons granted access to the work place pending final determination of the appeal.
 The third and final criterion of the test is met.
 For the above reasons, the application for a stay of the direction is granted.
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