2019 OHSTC 17

Date: 2019-08-13

Case No.: 2018-37

Between:

Victor Lambe, appellant

and

McKevitt Trucking Limited, respondent

Indexed as: Lambe v. McKevitt Trucking Limited

Matters:

Appeal under subsection 129(7) of the Canada Labour Code of a decision rendered by an official delegated by the Minister of Labour

Decision:

The decision is confirmed.

Decision rendered by: Olivier Bellavigna-Ladoux, appeals officer

Language of decision: English

For the appellant: himself

For the respondent: Brad Smith, Legal Counsel, Weilers Law

Citation: 2019 OHSTC 17

Reasons

[1] These reasons concern an appeal brought under subsection 129(7) by Mr. Victor Lambe against a decision of absence of danger that was rendered on November 2, 2018, by Mr. Azmat Jadoon, an official delegated by the Minister of Labour (ministerial delegate).

[2] For the reasons that follow, I confirm the decision rendered by the ministerial delegate.

Background

[3] On September 21, 2018, the appellant exercised his right to refuse to work under section 128 of the Code. At the time of the work refusal, the appellant was a warehouse supervisor for the respondent. The appellant claims that the docking plates at his work place are unsafe to work with and that his employer, the respondent, refuses to fix them. A docking plate is a piece of equipment used in order to bridge a gap between a delivery truck and a loading dock. In order to release the docking plates from their resting position, the respondent’s employees have to stand inside the warehouse, next to the docking plate, and pull the docking plate handle with the use of what was referred to during the hearing as a “pin puller”. My understanding is that the tool used by the dock employees does not consist of a traditional pin puller, but is shaped like one. The pin puller used by the dock employees consists of a metal tool approximately 3 feet long. It has a handle at one end, and is curved at a 90-degree angle at the other end.

[4] Once the docking plate handle is pulled with the pin puller, a functional docking plate would normally spring upwards, extend fully, and come down to rest on a trailer that is backed into the dock. However, at the time of the appellant’s work refusal, some docking plates at the respondent’s warehouse were defective and not operating the way they were designed to. This fact is not contested. In order to operate faulty docking plates, an employee has to stand inside a trailer as opposed to inside the warehouse, grip and pull the dock plate upwards with the pin puller, and then stand on the dock plate in order to use his own body weight to bring the dock plate down to rest on the trailer. Once the docking plate is down, the employee uses the pin puller to pull an approximately 45-pound brake drum onto the plate to hold it down. The appellant claims that operating a faulty docking plate constitutes a danger to him and to other employees.

[5] Following the appellant’s work refusal, the respondent proceeded to do a work place investigation and reached a conclusion that a danger did not exist. On the refusal to work investigation employer report, the respondent indicated: “5 docking plates have old brake drum to keep pressure on the spring. One dock plate is out of service. The plates are still in use.” The respondent indicated that it found a repair company that has access to replacement parts and that the replacement parts were ordered.

[6] The appellant was not satisfied with the results of the respondent’s investigation and did not return to work. The workplace health and safety committee (committee) investigated the issue and also reached a conclusion that a danger did not exist. The committee’s report mentions that doors 1, 2, 5, 7, 9 and 12 need to have a weight to hold them down because the springs need adjusting and some parts need to be replaced. The committee believed that the issues described above were due to improper maintenance over the years and recommended that the respondent repair the plate and get a service schedule implemented.

[7] Because the appellant indicated that he was not satisfied with the committee’s findings, the respondent contacted the Labour Program, and, on October 29, 2018, the ministerial delegate conducted an investigation of the appellant’s work refusal at 1540 Britannia Road East, Mississauga, Ontario. The ministerial delegate established the following facts:

• The pin puller tool limits the movements that an employee has to make while completing the task
• The actions of opening and closing the dock plate are completed from a distance when using the pin puller
• The docks in question require regular maintenance
• The docks in question have not been maintained over a period of time, and
• The brake drums cannot be a permanent solution for weighing the docking plates down

[8] The ministerial delegate’s report also includes a driver’s incident report dated August 22, 2018, and a medical note dated August 23, 2018, showing that the appellant had previously been injured while lifting a dock plate, and had sought medical assistance for back issues for that reason. The report includes a document entitled Assurance of Voluntary Compliance (AVC) that was signed by the respondent on November 2, 2018, in which the ministerial delegate noted that the respondent had not ensured that the docking plates in the work place were free of surface irregularities, specifically the usage of brake drums to weigh the docking plates down, and asked that this be rectified by November 16, 2018. On the same document, the ministerial delegate also noted that the docking plates in the workplace were not clearly marked or tagged to indicate the maximum safe load capacity, and asked that this be rectified by November 16, 2018. Despite these observations, the ministerial delegate concluded that there was no danger to the appellant.

[9] On November 2, 2018, the ministerial delegate hand delivered a decision that a danger does not exist to the appellant. The appellant filed his appeal of the ministerial delegate’s decision on November 16, 2018, 3 days beyond the time limit set out in subsection 129(7) of the Code. The same day, the registrar of the Tribunal communicated with the appellant to notify him of the expiry of the deadline, and to provide him with the opportunity to make submissions for extending the deadline. I granted the appellant’s application for an extension of time on January 22, 2019.

[10] I heard the appeal on the merits in Toronto on March 25, 2019. I heard testimonies from the ministerial delegate, the appellant, Mr. Jeff Lightle - another dock employee employed by the respondent - and Mr. Michael McKevitt, the terminal manager at the Mississauga location of McKevitt Trucking Limited. At the time of the hearing, it was revealed that the AVC handed to the respondent by the ministerial delegate had been complied with.

Issue

[11] The issue here is whether the appellant was exposed to a danger as defined under the Code in the circumstances that prevailed at the time of his work refusal.

Submissions of the Parties

Appellant’s submissions

[12] At the hearing held in Toronto on March 25, 2019, as Mr. Lambe was self-represented during the proceedings, I reviewed with the parties the relevant law and jurisprudence in the case and their implications. When the hearing concluded, the appellant was given until April 23, 2019, to provide final submissions concerning his appeal.

[13] On March 27, 2019, the Tribunal’s registrar sent a letter to the parties highlighting the timeframes to provide their final submissions, and under my request, gave the following guidelines to the parties:

[14] On April 17, 2019, the appellant provided the Tribunal with his final submissions. After review and as pointed out by the respondent on April 24, 2019, the documents seemingly related to proceedings in front of another forum. On April 24, 2019, the Tribunal reached out to the appellant and asked for a confirmation that the submissions he provided were his final submissions concerning his appeal of the decision that a danger does not exist in his work place rendered by the ministerial delegate on November 2, 2018.

[15] On April 25, 2019, the appellant provided the Tribunal with a series of documents. After careful consideration of these documents, it is my conclusion that the appellant’s submissions do not relate to a danger in his work place. The appellant did not address the definition of danger set out in subsection 122(1) of the Code or the legal test to interpret the definition of danger, despite the guidelines established during the course of the hearing and in the letter subsequent to the hearing, dated March 27, 2019.

Respondent’s submissions

[16] The respondent addressed the legal test to set out at paragraph 199 of the decision in Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson) to determine whether the appellant was exposed to a danger as defined under the Code the day of his work refusal.

[17] The respondent claims that the appellant did not articulate aspects of the docking plates that posed a danger, as defined under the Code. For the purpose of the analysis, the respondent describes the risk identified by the appellant as arising from the upward movement of the docking plates from their horizontal resting position in a manner not consistent with their normal operation.

[18] The respondent does not dispute that some aspects of the docking plates were malfunctioning due to use and wear and tear, but notes that there was no actual injury incident. The respondent states that the upward movement of the plates caused by the malfunction was slow and well known by the employees. The respondent submits that any potential risk presented by the docking plates was neither an imminent nor a serious threat to the life or health of a person exposed to it.

[19] The respondent claims to have taken steps to reduce any such risk: 1) the use of a brake drum as a weight to keep the plates horizontal; and 2) the inspection and repair of the docking plates. The respondent therefore submits that corrective action was taken before the threat to life or health existed.

[20] The appellant did not reply to the respondent’s submissions.

Analysis

[21] I am seized of an appeal under 129(7) of the Code of a decision that a danger does not exist rendered by the ministerial delegate. Subsection 146.1(1) of the Code sets out the authority of an appeals officer when seized of an appeal of a decision that a danger does not exist:

[22] The appellant engaged in a work refusal pursuant to subsection 128(1)(a) of the Code:

[23] The appellant believes that the operation of faulty docking plates in his work place constitutes a danger to himself and other employees while at work. The concept of danger under the meaning of the Code is defined at subsection 122(1):

[24] In order to decide whether I will confirm or rescind the decision that a danger does not exist rendered by the ministerial delegate, I will apply the legal test set out in Ketcheson to the facts of the present case, in order to the determine if the appellant was exposed to a danger as defined under the Code.

[25] The test is set out as follows:

1. What is the alleged hazard, condition or activity?
   1. Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
      Or
   2. Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
2. Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

What is the alleged hazard, condition or activity?

[26] For all practical purposes, the appellant did not make any final submissions regarding the definition of danger. I will nonetheless use the evidence I gathered during my investigation to assess whether or not the hazard the appellant alleged at the time of his work refusal constitutes a danger under the Code.

[27] I gather from the appellant’s testimony, and as pointed out by the respondent, that the hazard alleged by the appellant is the upward movement of the docking plates from their horizontal resting position in a manner not consistent with their normal operation.

Could this hazard, condition or activity reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it?

[28] The second part of the test requires that I determine whether the alleged hazard could reasonably be expected to be an imminent or serious threat to the life or health of the appellant.The second step of the second part of the test is to determine whether or not, at the time of his work refusal, the appellant was facing a serious threat to his life or health. The appeals officer in Ketcheson wrote the following concerning the seriousness of a threat:

[29] I must first make a determination as to whether the hazard alleged by the appellant could reasonably be expected to be an imminent threat to the appellant. The appeals officer in Ketcheson interpreted the concept of an imminent threat as follows:

[30] In the case at hand, I must therefore decide whether the upward movement of a docking plate from its horizontal resting position in a manner not consistent with its normal operation could have reasonably been expected to cause injury to the appellant, within minutes or hours from his work refusal.

[31] The definition of danger at section 122(1) of the Code is clear to the effect that a danger means “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered” [emphasis added].

[32] In order to assess whether the hazard identified by the appellant could reasonably be expected to be an imminent threat, I find guidance at paragraph 205 of the Ketcheson decision reproduced above. I must take into consideration whether that hazard will occur in the presence of the appellant or another employee; whether the hazard will cause an event; and the probability that this event will cause harm to the appellant or another employee exposed to it.

[33] In Verville v. Canada (Correctional Services), 2004 FC 767, Gauthier, J. Stated that “the definition [of danger] only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.” The decision in Verville dealt with the previous definition of “danger” under the Code, but the Federal Court confirmed in Attorney General of Canada v. Laycock, 2018 FC 750, that Verville continues to provide useful guidance for the interpretation of the concept of “reasonable expectation”.

[34] The appellant stated during his testimony that when he removed the brake drum from a faulty docking plate in order to release it, the docking plate would release much faster than it normally would and could hit him or another employee walking by in the face or on the arm. He also stated that, if a piece of wood was left on a plate, it could be sent flying when the plate is being released and hit an employee. The appellant, however, never witnessed any accident of the sort, nor is aware of any other employee getting hurt by a docking plate in the way he describes. Mr. McKevitt also confirmed during his testimony that the docking plates never caused an actual accident or injury. In my opinion, the scenarios described by the appellant are purely hypothetical and do not meet the threshold required to be considered a reasonable possibility.

[35] Based on the evidence before me, mainly on the appellant’s testimony during which he admitted that the hazard he alleges has never occurred, I find that there is no reasonable expectation that the hazard alleged by the appellant could have materialized within minutes or hours of his work refusal. It is my conclusion that the upward movement of the docking plates from their horizontal resting position, even in a manner not consistent with their normal operation, did not consist of an imminent threat at the time the appellant refused to work.

[36] I must now determine whether that movement constitutes a serious threat. The appeals officer, again in Ketcheson, wrote the following:

[37] If a docking plate could hit an employee’s face or arm in the way described by the appellant, the degree of harm could be severe, but the evidence before me shows that such a scenario is unlikely to happen. Not only are the docking plates not susceptible to be an imminent threat to an employee because the likelihood of an incident happening is very low, but it is also my opinion that the upward movement from the plate could not cause a serious injury to an employee.

[38] I heard testimonies from the ministerial delegate, and from Messrs McKevitt and Lightle. These three witnesses were adamant that the docking plates, faulty or not, could not release fast or high enough to hurt an employee in the way described by the appellant. During his investigation and according to his report, the ministerial delegate noticed that the faulty docking plates would come up faster and higher than a normal operating docking plate, but not in an alarming way.

[39] In an attempt to illustrate the height and speed of a faulty docking plate when it is being released, the ministerial delegate said that if a bowl of water was left on one of the faulty docking plates, the bowl would not be thrown, but would simply slide down the plate when the plate is being released. I draw from that comparison that the speed and height at which the docking plates are released, even when faulty, are too low to cause any type of injury to an employee, either if he/she is operating the docking plates or simply walking by.

[40] I was not presented with any credible evidence that would serve to demonstrate that the upward movement of a docking plate from its horizontal resting position in a manner not consistent with its normal operation could be a serious threat to the life or health of the appellant. Based on what precedes, I find that the appellant, while operating the docking plates, could not reasonably be expected to be hit in the face or on the arm by a docking plate and suffer a serious injury.

[41] Because of my conclusion that the hazard identified by the appellant cannot reasonably be expected to be an imminent or a serious threat to his life or health, I do not need to address the last part of the test set out in Ketcheson, as to whether the threat to life or health will exist before the hazard or condition can be corrected or the activity altered.

Decision

[42] For these reasons, I confirm the decision rendered by the ministerial delegate on November 2, 2018, and dismiss the appeal.

Olivier Bellavigna-Ladoux

Appeals officer