2019 OHSCT 14

Date: 2019-06-11

File No.: 2019-16

Between:

Swissport Canada Handling Inc., Applicant

and

Teamsters Local Union 419, Respondent

Indexed as: Swissport Canada Handling Inc. v. Teamsters Local Union 419

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: Pierre Hamel, Appeals Officer

Language of the decision: English

For the applicant: Mr. Robert W. England, Counsel, Miller Thompson LLP

For the respondent: Mr. Harjinder Badial, Secretary Treasurer, Teamsters Local Union 419

Citation: 2019 OHSTC 14

Reasons

[1] These reasons concern an application brought by Swissport Canada Handling Inc. (Swissport)    under subsection 146(2) of the Canada Labour Code (the Code) for a stay of a direction issued on March 6, 2019 by Ms. Elizabeth Porto, in her capacity as official delegated by the Minister of Labour (ministerial delegate).

[2] The direction was issued against Swissport pursuant to subsection 145(1) of the Code and reads as follows:

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

Direction to the employer under subsection 145(1)

On February 21, 2019, the undersigned Official Delegated by the Minister of Labour conducted an inspection in the work place operated by Swissport Handling Canada Inc., being an employer subject to the Canada Labour Code, Part II, at Terminal 3, room AH103K, Lester B Pearson International Airport, Mississauga, Ontario, L5P 1A2, the said work place being sometimes known as Swissport Ground Handling Inc.

The said Official Delegated by the Minister of Labour is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened:

No./No: 1

Paragraph 125(1)(k) - Canada Labour Code Part II

Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity, ensure that the vehicles and mobile equipment used by the employees in the course of their employment meet prescribed standards.

Subsection 14.9(1) - Canada Occupational Health & Safety Regulations

Motorized materials handling equipment that is regularly used outdoors shall be fitted with a roof or other structure that will protect the operator from exposure to any weather condition that is likely to be hazardous to the operator's health or safety.

The employer has failed to ensure that the following motorized material handling equipment, that is regularly used outdoors, has been fitted with a roof or other structure that will protect the operator from exposure to adverse weather conditions such as, snow, rain, freezing rain and hail. (List of applicable motorized material handling equipment that requires a roof or other structure attached in Appendix A)

Therefore, you are hereby directed, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than April 30, 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 no later than April 30, 2019 to ensure that the contravention does not continue or reoccur.

Issued at Toronto, ON, this 6th day of March, 2019.

(s)  Elizabeth Porto
Official Delegated by the Minister of Labour

[3] On April 5, 2019, the employer filed a notice of appeal against the direction pursuant to subsection 146(1) of the Code and simultaneously filed its request for a stay of the direction pending the disposition of the appeal on its merits.

[4] The application was heard by way of teleconference on May 23, 2019.

[5] The parties were advised of my decision to grant the application for a stay on May 24, 2019, with reasons to follow. I rendered my decision after a careful review of the parties’ submissions and documentation filed in support of the application. I hereby set out the reasons for my decision.

Background

[6] I will briefly outline the factual context that led to the direction, as outlined in the ministerial delegate’s investigation report and the notice of appeal.

[7] The applicant provides ground services to the aviation sector at Pearson International Airport in Toronto, Ontario (Pearson Airport). The services provided by Swissport include the loading and unloading of cargo and passenger baggage from and on to aircrafts landing and taking off from Pearson.

[8] Swissport provides those services to a number of international carriers including Air France, Air Italy, Alitalia, British Airways and many others. In order to provide those services Swissport uses ground handling equipment. Such equipment includes motorized equipment, which include tugs – or tractors - and baggage belt loaders. At Pearson Airport, Swissport has 50 tugs and 28 baggage loaders.

[9] As of the date of the appeal, Swissport employed 1,008 employees at Pearson Airport, of whom 386 are engaged in the loading and unloading of cargo and passenger baggage from or on to aircraft (the outside employees). The outside employees engaged in those operations do so on three shifts a day, seven days a week. On average, 42 tugs are used by Swissport workers and 25 baggage loaders are used on every shift.

[10] On February 21, 2019, the ministerial delegate attended Swissport’s work place at Pearson Airport for the purpose of conducting a “specific” inspection. The record indicates that there was no particular incident, work refusal or other event that caused the ministerial delegate to attend the work place. As she stated during the teleconference, she was assigned such inspection duty by her manager.

[11] It should be mentioned that the inspection and the direction that the ministerial delegate issued on March 6, 2019, follows a similar inspection that she conducted one week earlier at the Air Canada Ramp and Baggage work place at Pearson Airport. That previous inspection resulted in the issuance of a direction against Air Canada, on the same grounds as the present direction. Air Canada appealed the direction issued and also requested a stay of the direction. I granted Air Canada’s application for a stay on April 18, 2019, for the reasons set out in Air Canada v. International Association of Machinists and Aerospace Workers, Local 2323, 2019 OHSTC 10 (Air Canada). 

[12] The ministerial delegate stated in her report that she observed that the weather conditions at the time of her inspection were not favourable, with high blowing snow and freezing rain, and that in her view, the safety of the tractors for the operations was compromised. As a result of this observation, Ms. Porto identified a violation of subsection 14.9(1) of the Canada Occupational Health and Safety Regulations (Regulations).

[13] Because of the likely impact of her conclusions on the employer’s operations, the ministerial delegate consulted with advisors from the Labour Program before issuing her direction. When issuing her direction, the ministerial delegate relied on a decision involving Air Canada issued in 1997 (Decision No. 97-007) by a Regional Safety Officer (RSO), predecessor of the OHSTC. The RSO concluded that by enacting subsection 14.9(1), “the legislator intended that employees who operate motorized equipment regularly used outdoors should have additional protection since the elements could affect their judgement while operating the equipment or simply their health”.

[14] The ministerial delegate consequently issued her direction on March 6, 2019, with a compliance date of April 30, 2019. The corrective measures that must be taken by the employer to comply with the direction and the prescriptions of subsection 14.9(1) of the Regulations, which is to equip the tractors with “a roof or other structure”, is a significant task as it applies to 61 baggage tractors and belt loaders, which would have to be retrofitted. As the ministerial delegate explained during the teleconference, the compliance date of April 30, 2019, was the furthest date contemplated under the Labour Program’s Compliance Policy. That date was also set with the assumption that the appeals officer could amend the compliance date, should the employer come up with an acceptable action plan to comply, which also presumes that the employer would not challenge the merits of the direction but only the compliance date.

[15] As in the Air Canada case referred to above, there is little dispute that it was not possible for Swissport to be in compliance with subsection 14.9(1) of the Regulationswithin the time limits set by the ministerial delegate.

Analysis

[16] The authority of an appeals officer to grant a 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.

[17] Appeals officers have considerable discretion in determining whether a stay should be granted (Brinks Canada Ltd. v. Childs, 2017 OHSTC 4; Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2013 OHSTC 36). Such discretion must be exercised in a way that supports the objectives of the Code and largely depends of the context in which the direction is issued and its impact on the employer’s operations. As such, each case turns on its own set of facts. The Tribunal’s jurisprudence has set out a test comprising various factors that appeals officers should consider in dealing with an application for a stay; those factors provide an appropriate analytical framework for appeals officers to apply their discretion in each case: see S.G.T. 2000 Inc. v. Teamsters Quebec, local 106, 2012 OHSTC 15, at para. 5. Originally derived from the Supreme Court of Canada decision in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (Metropolitan Stores), the three elements 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

[18] I will consider in turn each of these criteria, as required.

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

[19] The applicant filed written submissions with the Tribunal in support of its application for a stay, which include a fairly detailed description of its operations. I will summarize the aspects of the submissions that I consider to be germane to the present application, as opposed to the merits of the appeal, as well as the oral submissions of the parties at the teleconference.

[20] The applicant submits that the grounds for the appeal are serious and are not frivolous or vexatious, and that the chances of success of the appeal are very high. Swissport contends that section 14.9(1) of the Regulations does not apply to the motorized materials handling equipment in question and it is not necessary to install protective structures. The employer echoes the position advanced by Air Canada as summarized by the appeals officer in Air Canada, that the section is drafted in a way that requires a specific analysis of whether adverse weather conditions to which an operator would be exposed is likely to be hazardous to his/her health or safety, considering also the mitigating measures that the employer has in place for such weather conditions.

[21] The applicant submits that the type of equipment at issue is in all material aspects the same as the type of equipment at issue in the present case, and the decision reached by the appeals officer on the first criterion in Air Canada should be the same.

[22] The respondent submits that subsection 14.9(1) applies to the baggage tractors and belt loaders so as to provide appropriate protection to the operators from the elements. The employer showed no intention to comply from the start, and made no efforts to follow up with the Work Place and Policy Health and Safety Committees after the direction was issued.

Decision on the first element of the test

[23] Under the title Protection from Elements, subsection 14.9(1) of the Regulations reads as follows:

14.9(1) Motorized materials handling equipment that is regularly used outdoors shall be fitted with a roof or other structure that will protect the operator from exposure to any weather condition that is likely to be hazardous to the operator’s health or safety.

[24] I am of the view that the first criterion has been met, for the same reasons that I expressed in the Air Canada case. While it is premature to assess the merits of the appeal and determine whether subsection 14.9(1) applies to the equipment in question, it is not inappropriate for the appeals officer to assess the grounds and rationale invoked by the employer in support of its appeal, for the purpose of determining whether it is serious as opposed to abusive or frivolous.

[25] As it was stated many times, the threshold for this first criterion is rather low and I am of the view that the employer has a “reasonably arguable case” regarding the application of subsection 14.9(1). I note that subsection 14.9(1) appears to be concerned with protecting employees from their exposure to adverse weather conditions. The ministerial delegate’s observations relate to the safe operation of the tractor that she considered to be compromised by the weather conditions, resulting in her view in a potentially dangerous situation for the employee. Whether subsection 14.9(1) is designed to address that type of hazard is, in my opinion, a debatable question. There may be other provisions of the Code and Regulations that impose obligations on the employer in that regard, but that is not the subject matter in the present case.

[26] The employer further argues that the determination of the likelihood that the employee’s exposure to certain weather conditions is likely to be hazardous to the operator’ health or safety is a matter of evidence, and requires a hazard assessment in light of other mitigating measures that may be taken by the employer. I do not consider this argument to be frivolous or vexatious.

[27] As I stated in the Air Canada decision, those questions do not seem to have been directly addressed in the RSO’s decision referred to by the ministerial delegate. I reiterate that I make no finding on these questions, but I have no reason to consider these submissions as being frivolous, vexatious or to be an undue dilatory tactic put forward solely to avoid compliance.

[28] For those reasons, I am of the view that the first element of the test has been met.

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

Applicant’s Submissions

[29] First, the applicant describes at length the various points of service where the outside employees conduct their operations and the distances they travel while driving the tractors between gates and aircrafts. While this information is seemingly more relevant to the merits of the appeal, the applicant wishes to show that the time spent driving the motorized material handling equipment is not very significant, ranging from 3 minutes to 14 minutes, depending on the gates being serviced.

[30] The applicant then explores various options to equip the 37 baggage tractors and 24 belt loaders that are subject to the direction with a roof or other structure. They could be retrofitted, but to do so would require the removal of the equipment from service for a certain period of time, which would cause disruption in the operations, and delayed or cancelled flights, resulting in prejudice to the employer and the travelling public.

[31] The applicant describes the significant financial costs that it would incur to achieve such retrofitting of its material – in the order of $800,000 – and the time between the issuance of a purchase order and the delivery and installation of the cab components – in the order of 12 to 16 weeks – which the employer considers to be an optimistic projection. The option of purchasing new tractors and belt loaders with a roof would also present significant costs and timeline issues – approximately $2.7 Million – and at least 21 weeks for delivery. Under either option, there would need to be training of employees on the retrofitted or newly acquired equipment.

[32] On receipt of the direction, Swissport made inquiries as to whether or not it was possible to obtain baggage tractors and belt loaders equipped with cabs on short notice; it was not. Swissport does not have surplus baggage tractors at any of its Canadian operations that can be transferred to Toronto and has determined from its inquiries with suppliers of baggage tractors and belt loaders that there are no readily available replacement baggage tractors and belt loaders, new or used, that can be acquired by Swissport to be utilized until the appeal is heard and a decision by the appeals officer is released.

[33] The applicant further notes that its operation at Pearson is only one of ten like operations of Swissport in Canada. At present, Swissport has comparable operations to those at Pearson Airport, in Vancouver, Edmonton, Calgary, Winnipeg, Ottawa, Montreal, Mirabel, Quebec City and Halifax. At each of these facilities, there are baggage tractors and belt loaders comparable to the baggage tractors and belt loaders used by Swissport at Pearson Airport. Customarily, in North America and northern Europe, ground service companies such as Swissport operate baggage tractors and belt loaders that do not have roofs or other structures to address potential exposure to adverse weather conditions. The disposition of this appeal will therefore have national implications for Swissport.

[34] The applicant acknowledges that financial hardship or costs are not, alone, a factor which would allow an appeals officer to grant a stay. That said, Swissport submits that costs are a factor that may be considered together with other factors that would warrant a stay. It is submitted that, in the instant case, the costs that would be incurred by Swissport in either retrofitting the relevant baggage tractors and belt loaders or purchasing new baggage tractors and the costs incurred in halting the provision of Swissport services until retrofitted or new equipment is available are, on an objective basis, significant. The resources and time to comply with the direction are significant and are not a mere inconvenience.

[35] Swissport further submits that its competitors at Pearson Airport operate the same kind of equipment at issue in the present case, without a roof or other structure. If a stay is not granted, Swissport would be required to undertake actions and incur costs that would not be incurred by its competitors and would, therefore cause significant prejudice to Swissport and thereby impair its competitive position. Those costs could not be recovered even if the appeal was to succeed, which renders the appeal pointless and moot.

[36] Finally, the employer stresses that it has operated at Pearson Airport without interruption for at least two decades using baggage tractors and belt loaders without roofs or similar structures and stresses the fact that the unacceptable compliance date has been arbitrarily set by the ministerial delegate, without regard to the actual period of time required to bring about the required corrective measures.

Respondent’s Submissions

[37] The respondent submits that the time spent by employees driving the tractors and belt loaders is in the range of 10 to 15 minutes, which is not insignificant. This justifies the need for additional protection in order to deal with inclement weather conditions, whether they cause frostbites in wintertime or de-hydration in summer time, and the ministerial delegate was correct in ordering compliance with subsection 14.9(1) of the Regulations.

[38] The respondent submits that the fact that the employer has operated the tractors and belt loaders without a roof for two decades does not make it right. The respondent disagrees that additional – and lengthy – training would be required, as the employer already operates materials handling equipment equipped with a roof structure and employees are already trained to operate that equipment.

Decision on the second element of the test

[39] I am persuaded by the applicant’s submissions, essentially for the same reasons that formed the basis of my decision in the Air Canada case, and which I reiterate below.

[40] First, I accept the applicant’s submission that retrofitting the equipment to make it compliant is not a small task and is not possible to achieve within the compliance date set by the ministerial delegate, given the number of baggage tractors and belt loaders involved. As such, I also accept the applicant’s contention regarding the impact that not granting a stay would have on Swissport’s operations. Not granting the stay would mean that Swissport would be in violation of the direction and of the Regulations, and subject to penal prosecution on both grounds. Swissport would likely avoid placing itself in the position of transgressing its legal obligations by continuing to use the equipment regardless. As counsel for the applicant pointed out, each day would likely be a new and repeated violation of the Code, subject to prosecution. Therefore, it seems clear to me that such a situation would have significant impact on the operations of the applicant and its customers, such as delays in the flight schedules, thereby penalizing the applicant and the travelling public.

[41] The applicant acknowledged that the question of the costs of the measures to be undertaken have not been accepted by appeals officers as being a factor to grant a stay, absent other considerations. However, the costs involved here are objectively not insignificant and the operation itself of retrofitting or purchasing new or used material is a demanding and time-consuming process involving many steps and considerations, all of which brings Swissport well beyond the compliance date set by the ministerial delegate. Knowing this, it would be pointless to require immediate compliance with the direction in those circumstances.

[42] In City of Ottawa (OC Transpo) v. Norman MacDuff, 2013 OHSTC 27 (City of Ottawa), the issue of financial costs ($16 M) involved to equip OC Transpo’s buses with additional equipment to protect bus operators from assaults by customers was raised as a consideration to grant a stay. I agree with the appeals officer when he states as follows on that point:

[20] For the second criterion, that of significant harm if a stay is not granted, I find that the applicant makes a convincing case with respect to the potential costs of compliance with the direction. Mr. MacDuff’s characterisation of these costs as modest in relation to the City’s overall budget might apply in strict percentage terms but I do not accept that it is a valid way to assess the apportionment of municipal expenditures. I agree with Counsel for the applicant that the costs of implementing the remedial measures discussed with the HSO would be considerable.

[21] That said, I am conscious of appeals officers having held previously that financial costs or mere inconveniences do not alone satisfy the significant harm criterion. Even so, the potential financial costs in the present case are substantial and not of the same order as a mere inconvenience. In my view, the prospect of the applicant incurring considerable costs on the basis of a finding that it is contesting and that as in all appeals may or may not be sustained, deserves some consideration.

[Underlining added]

[43] I am therefore of the opinion that the steps that Swissport has to engage to comply fully with the direction are significant and the resources and time that they would entail are more than a “mere inconvenience” to the applicant.

[44] With respect to the impact of the direction on the employer’s operations, keeping in mind that the practice of operating tractors and belt loaders without a roof or other structure appears to have been in place, at least for the Pearson Airport operations of Swissport, for two decades, I subscribe to the appeals officer’s view expressed at paragraph 22 of City of Ottawa, as follows:

[22] The applicant contends that the direction is vague and lacks specifics. As such it submits that it is unclear what measures need to be taken to be in compliance. This it is argued may cause harm because, if found to be non-compliant, the applicant may be subject to drastic sanctions without having had an opportunity to understand what steps were required to ensure compliance. Where this argument gains additional merit for me is when the short timeframe set for compliance with a far reaching direction is also considered. I am of the view that to expect the longstanding practices involved could be altered in any significant manner in the space of some four weeks is unrealistic and that endeavouring to do so would place great stress on the applicant and the transit system. In this respect, Counsel made reference to a previous Tribunal decision, in which disruption to long established practices was taken into account in the granting of a stay. Although the facts differ appreciably, I find the underlying argument in that case to be of relevance here. (Bell Canada, 2010 OHSTC 16).

[Underlining added]

[45] I agree with the respondent that such practice, however lengthy it may have been, does not make it right and does not relive the employer form its obligation under the Codeor Regulations, assuming the ministerial delegate is ultimately correct in her decision that subsection 14.9(1) applies and was violated. However, that argument is more relevant to the merits of the appeal, rather than to the analysis conducted at the present stage as to whether a stay should be ordered.

[46] Secondly, I also consider the nature of the direction against the alleged harm to the applicant. The direction does not relate to a situation of danger where the health and safety of employees may be jeopardized and where measures to correct the hazard are needed immediately. In Canadian National Transportation Limited, 2013 OHSTC 15, I expressed the following view:

[23] The object of the direction is also a factor that I take into consideration in my decision to grant the stay in the present case. We are dealing with a direction requiring the Company to establish a work place health and safety committee, as opposed to a direction issued in the face of a dangerous situation or purporting to correct a violation of the Code or its Regulations that may endanger the health and safety of workers. In the latter cases, I am of the view that a stay should only be granted for very compelling and exceptional reasons. That said, I do not minimize the importance of work place safety and health committees and I acknowledge that employee participation in health and safety matters relating to their work place is a pillar of the scheme designed under the Code. However, I believe that the relative seriousness of the contravention and of its consequences is a relevant factor to take into account in assessing the prejudice caused to the parties and in exercising discretion under subsection 146(2).

[47] I have applied this reasoning in Termont Montréal Inc. v. Syndicat des Débardeurs, SCFP, section locale 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7, at paragraph 30.

[48] As she did in the Air Canada case, the ministerial delegate refers in her report to an RSO’s decision dating back to 1997 on a similar issue, which seemingly supports her direction. Yet, there is no indication in the investigation report that the minister or her representatives sought to actively enforce the decision, at least at the Pearson Airport operations of Swissport, until 2019, when the ministerial delegate conducted her inspection at her manager’s request. In other words, it does not seem, considering all of the circumstances established on the Tribunal’s record, that the situation at hand is one that requires pressing corrective measures to be taken to guard against a specifically identified hazard or danger. While there is no question that the employer must comply with regulatory prescriptions regarding its equipment, to do so in the present context within the compliance date set in the direction and where the foundation of the direction is challenged, would cause significant prejudice to the applicant.

[49] Thirdly, the compliance date in and of itself is problematic. No one seriously contends that the compliance date set by the ministerial delegate is realistic. In fact, the deadline determined by the ministerial delegate for compliance, i.e. April 30, 2019, had already lapsed at the time the application was heard on May 23, 2019. The date was determined with the understanding that the appeals officer could extend it if Swissport was able to present a reasonable action plan to achieve compliance.

[50] I addressed his question in the Air Canada case as follows at paragraphs 44 to 46 of the decision:

[44] The problem with Ms. Porto’s approach is that an appeals officer has no authority to vary a direction, including the compliance date, at this early stage of the appeal proceedings. The authority of an appeals officer to modify a compliance date derives from the appeals officer’s powers set out in subsection 146.1(1) of the Code:

146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may:

(a) vary, rescind or confirm the decision or direction

(b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1)

[45] Those powers may only be exercised further to the inquiry “into the circumstances of the direction and the reasons for it” as set out in the preamble of that subsection, i.e. the merits of the appeal. Those powers are incidental to the jurisdiction of the appeals officer in the conduct of his inquiry and dealing with the appeal. In other words, an appeals officer could dismiss the appeal on its substantive merits and confirm that the employer is in contravention of a provision of the Codeor Regulations, but could vary the time for compliance as authorized by subsection 146.1, providing the evidence establishes sufficient reasons to do so.

[45]  There are a number of decisions where appeals officers have indeed varied a compliance date in a direction, including recently: Handlex Inc. (Re), 2010 OHSTC 8; J.E. Culp transport, 2012 OHSTC 20; Robert Q’s Airbus Inc., 2013 OHSTC 9; Air Georgian Limited, 2015 OHSTC 6; Air Canada, 2016 OHSTC 9. It should be noted that in all those cases, the variation of the compliance date was ordered further to the inquiry on the appeal itself and where the employer had accepted the substantive merits of the direction, but solely disputed the timeframe within which to comply. The remedial power set out in subsection 146.1(1)(a) could thus be relied on by the appeals officer. This is not the case here as Air Canada vigorously disputes the merits of the direction and the applicability of subsection 14.9(1) to the baggage tractors and belt loaders identified in the list appended to the direction. This means that the inquiry on the appeal as mandated by subsection 146.1 (1) will have to take place before the remedial powers can be exercised.

[51] Consequently, at this juncture and in light of the fact that the direction is contested on its merits, the stay contemplated under subsection 146(2) is the only option open to an appeals officer to effectively relieve the employer from its obligation to comply with a direction within the prescribed time limits, providing of course that the appeals officer finds it justifiable to do so.

[52] For all those considerations, I conclude that the applicant has met the second criterion of the test and has established that it would suffer significant harm if a stay were not ordered.

What measures will be put in place to protect the health and safety of employees or any person granted access to work place should the stay be granted.

Applicant’s Submissions

[53] The applicant submits that to fulfil its obligations under the Code, it has in place extensive work place safety policies and programs, including training programs, which specifically address the safe operation of ground handling equipment, namely baggage tractors and belt loaders. Swissport notes that it has, as part of its Hazard Prevention Program, assessed the hazards associated with the use of baggage tractors and belt loaders at Pearson Airport and, based upon that hazard assessment, implemented preventative measures to mitigate the impact of adverse weather conditions on outside employees. 

[54] It has also attempted to assess the hazards that might result if baggage tractors and belt loaders were retrofitted or replaced with equipment with cabs, although it is not possible to make informed assessments on the hazards – namely visibility and blind spots, inadvertent contact due to proximity with aircrafts – until the equipment is available.

[55] Furthermore, Swissport had not been informed of any worker complaints, either directly or through the Work Place and Policy Health and Safety Committees, in relation to the absence of roof on the tractors or belt loaders. The applicant points out that the direction was issued after an inspection conducted by the ministerial delegate on instruction of her manager, as opposed to being in response to an accident or complaint.

[56] The applicant stresses that there have been no incidents involving operators being exposed to weather conditions where a roof or other protective structure was required to protect the operator. Swissport never received a direction in the past or agreed to an Assurance of Voluntary Compliance relating to the matter, unlike the situation prevailing in the Air Canada case.

[57] The applicant further undertook to take the following measures pending the appeal:

Respondent’s Submissions

[58] The respondent supports the ministerial proactive action to ensure compliance to the Code and the Regulations. The respondent points out that Personal Protective Equipment (PPE) is often inadequate to offer the protection a covered tractor could provide. The respondent also stresses that it has proven difficult for employees to obtain PPE in the past, such as goggles, facial protection (balaclavas) or gloves.

[59] The respondent submits that if a stay was to be ordered, special protective measures should be put in place to protect employees from the rigour of weather conditions. The respondent’s representative also expressed concern that other competitor employers were allowed to operate their motorized materials handling equipment without a roof or other protective structure. I point out that in reply to my question, the ministerial delegate stated that the matter had been raised and addressed with other companies providing similar services at Pearson Airport, without disclosing names or other facts, for reasons of confidentiality.

Decision on the third element of the test

[60] I am persuaded by the employer’s submissions regarding the current protection of employees in the circumstances of the present case. Given the similarity of the issues, I will again reiterate the reasons that I set out in the Air Canada case.

[61] The direction arises out of a “specific” inspection by the ministerial delegate that was not triggered by a work refusal, an employee complaint or a particular incident. The ministerial delegate referred to unfavourable weather conditions (blowing snow and freezing rain). However, she did not consider it necessary – or justifiable – to issue a “danger direction” under subsection 145(2) of the Code, which would have required that the employer take immediate corrective measures to address the condition that she had observed. To me, this is an indication that status quo could continue, subject of course to all existing provisions and protections under the Codeand Regulations, until the measures ordered in the direction that she eventually issued are taken.

[62] I also consider the seasonal context that led the ministerial delegate to issue her direction: blowing snow and freezing rain. As we have entered the month of June – as I write the present reasons – the kinds of hazards identified by the ministerial delegate are unlikely to occur in the short or mid-term. I am not dismissing the respondent’s reference to other kinds of adverse weather conditions, which may occur during the summer months or fall. However, they are of a different nature than the circumstances that were prevailing in February 2019 and in my view, can be mitigated appropriately.

[63] Consequently, for the purpose of deciding on a stay pending the appeal on the merits, I am of the view that the health and safety of employees will be protected under the status quo, which is a mode of operation that has been in place by this employer at the Pearson Airport for 2 decades. In the circumstances, I believe that in light of all other obligations placed on the employer under the Code to eliminate or mitigate hazards and the ability for employees to exercise their rights, including the right to refuse to work should conditions warrant it, the health and safety of employees will be protected during the operation of the stay.

[64] For the above considerations, I am of the view that the applicant has met the third element of the test. That said, as I did in the Air Canada case and giving due regard to the respondent’s submissions regarding the need for additional protection during the stay, I find that the applicant’s commitments set out in its submissions to ensure the employees’ safety should be appropriately integrated in my decision, as conditions of the stay.

[65] To sum up, I have concluded that the applicant has met the threefold test established under the Tribunal’s jurisprudence, namely, that the appeal is not frivolous or vexatious; that the applicant would suffer significant harm or prejudice if the direction was not stayed, looking at all the circumstances leading to the direction, including the date set by the ministerial delegate for compliance; and finally that the health and safety of employees is protected pending the appeal, including the conditions imposed on the applicant with the present order.

Decision

[66] For the reasons set out above, the application for a stay of the direction issued on March 6, 2019 by Ms. Elizabeth Porto is granted under the following conditions:

1. The employer, Swissport Handling Canada Inc., shall forthwith inform the Work Place and Policy Health and Safety Committees of the stay of the direction;

2. The employer shall immediately and in writing, inform employees of the hazards associated with the weather conditions and shall remind employees who operate the motorized material handling equipment referred to in the direction of their right to report to their supervisor any weather related concerns regarding the use of such equipment, including their right to refuse to work should they consider that the operation of the equipment exposes them to a condition presenting an imminent or serious threat to their health or life; and

3. As it has undertaken to do in its submissions supporting the present application, the employer shall continue, pending the appeal, to:

i. Ensure the protective clothing and any other appropriate personal protective equipment will continue to be made available to Swissport outside employees who operate baggage tractors and belt loaders;

ii. During any adverse weather events, adjust its operations to take into account the weather conditions;

iii. Continue to closely monitor and re-assess weather related working conditions;

iv. Implement additional safety measures to address changes in those weather conditions.

[67] The stay will be effective until the final disposition of the appeal.

Pierre Hamel
Appeals Officer

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