2019 OHSTC 19

Date:  2019-09-25

File No.:  2018-06

Between:

Patrick Jordan, Appellant

and

Neptune Bulk Terminals (Canada) Ltd., Respondent

Indexed as:  Jordan v. Neptune Bulk Terminals (Canada) Ltd.

Matter:  Appeal under subsection 129(7) of the Canada Labour Code of decisions rendered by an official delegated by the Minister of Labour.

Decision:  The decisions that a danger does not exist are confirmed.

Decision rendered by:  Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision:  English

For the appellant:  Ms. Jodie Gauthier, counsel, Koskie, Glavin, Gordon, Barristers and Solicitors

For the respondent:  Mr. Paul Fairweather, counsel, Harris & Company LLP

Ms. Alyssa Paez, counsel, Harris & Company LLP

Citation:  2019 OHSTC 19

Reasons

[1] These reasons concern an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) challenging two decisions that a danger does not exist rendered on February 8, 2018, by Captain Nicholas Teoh in his capacity as an official delegated by the Minister of Labour (ministerial delegate). The two decisions were rendered following two work refusals registered by the appellant on the same issue, on the same day.

Background

[2] The appellant’s work refusals concerned the shore-to-ship gangways in use at Neptune Bulk Terminals (Canada) Ltd. (Neptune) and the attachment of such gangways to a vessel. Neptune is a bulk shipping operation located in North Vancouver, British Columbia. Neptune is engaged in the loading and unloading of bulk commodities such as coal, potash and phosrock, between rail cars and vessels. Vessels arrive at a part of the Neptune site made up of three berths on Burrard Inlet, those being referred to as Berth 1, 2 and 3. The vessels remain in these three berths for a few days at a time as a vessel is loaded or unloaded. It would appear that approximately nine vessels arrive and depart from Neptune each week. Those vessels come from all parts of the world, with the majority from China, many appearing relatively new and some being older.

[3] While it may be possible in certain circumstances to access a vessel at berth using the ship's own accommodation ladder rather than a portable gangway (a situation that is often the case at Neptune's Berth 3), vessels at Berth 1 and 2 (and sometimes at Berth 3) are accessed by way of a moveable gangway, property of Neptune, that is lifted up and put in place using the terminal's shiploader or the vessel’s own crane. When in place, one end of the gangway rests on the dock and the other end rests on the vessel. In a great many, if not most cases, the vessel end of the gangway is placed on top of the vessel’s handrails (railings), being reinforced by vertical stanchions welded to the deck.

[4] It would appear that this was so at least in the case of the two vessels concerned in the appellant’s work refusals. A short flight of stairs is attached to the vessel end of the gangway leading to the vessel's deck, accommodating the distance (approximately one metre) between the top of the railing and the deck. The dock end of the gangway has wheels that roll forward or backward to account for a ship’s upward and downward movement due to tides, as well as the loading or unloading of the ship that causes it to sit higher or lower in the water, thereby affecting the distance from dock to deck and thus, the angle at which the gangway will stand. This angle may not exceed 40 degrees, whatever the state of the tide or the draught of the ship.

[5] The words used by the appellant on the refusal registration form read as follows: “attachment of shore gangway to ship does not meet Code.”  On that form, there also appears an affirmative answer to the question of whether corrective measures had been taken following the appellant’s action, indicating “engineering planning in progress.” The work place investigation report on the work refusal is slightly more specific, in that it states: “gangways on all three berths do not meet Code, [Maritime Occupational Health and Safety Regulations (Regulations)], Part 2, section 12, means of access, Part 4(a)”, and indicates under heading “Events leading up to refusal” that “concern was raised in the JOHSC [Joint Occupational Health and Safety Committee] over 18 months ago. Issue has not been resolved to date.”

[6] More specifically, the work refusal concerned the practice of having a gangway resting on the handrails of a ship being loaded or unloaded at Neptune, this by means of a shepherd's hook attached to the underside of such gangway for the purpose of preventing the gangway from slipping off. In coming to a decision that a danger does not exist in both instances, the ministerial delegate briefly described as follows what the investigation had shown: “The top of the shore gangway ends with a [shepherd’s] hook. Plating is placed beneath this [shepherd’s] hook to distribute the weight of [the] top of the gangway. This part is resting on the ship’s railing supported by vertical stanchions welded to the ship's deck.”

[7] In rendering his decisions, the ministerial delegate formulated no other motive or rationale. The appellant claims in his notice of appeal that the practice mentioned above is in violation of the respondent’s obligation under paragraph 125.(1)(a) of the Code to “ensure that all permanent and temporary buildings and structures [such as gangways] meet the prescribed standards” and the underlying standards prescribed by the Regulations at subsections 12(1) and 12(3) and paragraph 12(4)(a), which read as follows:

[8] Also added in the notice of appeal are alleged violations to paragraphs 12(5)(b),(d),(e) and (f) of the Regulations, as well as to subsections 12(7),(8),(9) and (10) of the Regulations.

[9] A hearing on the merits of this appeal took place in Vancouver, BC, from January 29, 2019, to January 31, 2019.  Given the paucity of information provided by the ministerial delegate in his investigation report, both parties requested that the ministerial delegate be called to testify at the hearing. In addition to the ministerial delegate’s testimony, I also heard testimonies from the appellant, and from Messrs. John Hardwicke and Rod Calelle, operations foremen at Neptune, and Mr. David Foy, operations manager at Neptune. Mr. Alfonso Sotres, an engineer with a focus in naval architecture, also testified, as an expert witness.

[10] At the hearing, the ministerial delegate expressed the opinion that a variation in the angle of the gangway to the ship alters the weight that rests on the railings. The ministerial delegate explained that, when a vessel is at berth, it is moored with the use of 4 to 6 mooring lines at both ends of the vessel in order to prevent the vessel from moving forward or aft. According to the ministerial delegate, the gangways in use at Neptune have been constructed by the respondent, are made of aluminium and consist of a plank and railings, the presence of such railings making it unnecessary to have a safety net under the gangway when in place.

[11] According to the ministerial delegate, every part of a ship, including its railings, need to comply with certain specifications or standards established by a body of organizations designated as the “classification society” and, it is on the basis of such specifications or classification rules that the latter arrived at his decisions; not on the basis of the Regulations. One needs to state here that the ministerial delegate provided no insight as to what those specifications or classification rules would entail in his report or testimony. One can derive from the evidence adduced at the hearing that the situation that prevailed on the day of the appellant’s work refusals, and regarding the vessels at berth as well as the placement of the gangways, did not differ on that day from any other day, that resting a gangway on a ship's handrail supported by stanchions is standard practice throughout the maritime world, more so since most ships no longer have bulwarks.

[12] In his brief testimony at the hearing, the ministerial delegate also indicated not knowing the name or age of the vessels involved in the present case, their registry, where they were built or to which main port they were attached and he did not speak to the crews or inquire as to whether the ships had any damage. In essence, it was his perception that the two vessels appeared to have visited the port of Vancouver previously.

[13] As to the elements of the issue at hand, the ministerial delegate indicated having inspected (eyeballed) the handrails and stanchions on which the gangways rested and having found them safe, but he did not have those gangways lifted to look under the shepherd’s hook to verify the state of the supporting handrails underneath, whether they were damaged or had been freshly painted, possibly to cover rusting, nor did he verify how far the shepherd’s hook extended from each side of the gangway or whether the vessels' handrails or stanchions had been built for the purpose of supporting a gangway.

[14] According to the ministerial delegate, the gangways are 4 feet in width while the shepherd’s hook, in the form of a half-pipe, is 6 feet wide, thereby exceeding the width of the gangway by one foot on each side and thus spreading the pressure on a part of the guardrail supported or reinforced by two stanchions since those, again according to the ministerial delegate, need to be 5 feet apart. 

[15] Regarding the requirements of “safe access to the deck” stated at subsection 12(3) of the Regulations and that “steps, ladder or similar structure” be “firmly secured” to prevent its shifting, slipping or pivoting spelled out at paragraph 12(4)(a) of the Regulations, the ministerial delegate concluded his testimony at the hearing by stating that he was not aware of any regulation that would specify the type of “attachment to the ship” for the requirement of “safe access”, and that he was satisfied that the gangways in use at Neptune met the requirement of movement prevention.

[16] The findings by the ministerial delegate were vessel specific findings. The evidence also established that the appellant's original position was that the gangway was not to be placed on the handrails as it was supposed, pursuant to the Regulations, to be attached to the bulwark (a ship's side extending above deck, known as ''bastingage'' in French). However, the ministerial delegate pointed out to the appellant that bulwarks are seldom seen nowadays, something that was confirmed by Mr. Sotres, and that those are replaced by handrails fulfilling the same purpose, while weighing less. In his testimony, the appellant did not agree with the ministerial delegate and Mr. Sotres as to what constitutes a bulwark, although he offered no insight as to what he considered a bulwark.

Submissions of the parties

Appellant’s submissions

[17] The appellant believes the gangway set-up at Neptune does not ensure safe access to or from the vessel, and is, as such, unsafe and in clear violation of the Code and the Regulations. The appellant points out that, prior to the investigation into the work refusals, two members of the workplace health and safety committee, one from the employer side and one from the employees’ side, had agreed that the practice challenged by the work refusals is unsafe. That issue had been the subject of discussions at Neptune and a concern of members of the workplace committee for some time, but no alternate means of accessing vessels have been implemented.

[18] This existing concern, however, would not ultimately, according to the appellant, deprive him of his right to make a work refusal. More specifically, his position is that, until someone gets to the top of the gangway, once the gangway is resting on the handrail, it is impossible to know whether said handrail can take the weight or if it is damaged. Varying from ship to ship and dependent on factors such as rust, damage, wear and tear, a ship's state is unverifiable until the ship is at berth. In addition, the appellant puts forth that it is not always possible to place the gangway equally between stanchions and that a handrail is not a bulwark, as required by the Regulations. Such being the case, the appellant submits that, in the absence of a bulwark, one cannot adopt just any means of connection between gangway and ship.

[19] Noting that the respondent’s policies require that employees identify whether or not a handrail is fit to hold the gangway and that, if it is visibly corroded or its structural integrity has been compromised, the gangway needs to be repositioned to an area where the handrail is in good condition, the appellant's argument in support of its central position is that assessing the condition of the handrails prior to placing the gangway and using it to access the vessel is effectively impossible, given that the ability to visually inspect the handrail is often impeded by the distance of the individuals placing the gangway from the handrails and the lighting conditions prevailing at the time of the operation.

[20] The appellant also submits that other factors such as rust or welds are often invisible at the time of placement, that one cannot inspect the hand rail underneath the gangway and the shepherd’s hook after it is placed and that problems such as bends and dents of various sizes and fissures that may compromise the structural integrity of a handrail may be painted over and thus be functionally invisible. For his part, the appellant, in support of his claim that accessing the vessel using the gangway as set up on the handrail was unsafe and not in compliance with Part 2 (Structures) of the Regulations, submitted the following in his testimony:

• There is no way of knowing if handrails are designed to support a gangway when a ship comes in;
• It is not always possible to put a gangway in a preferred location on the handrail;
• It is not common practice to visually inspect the handrail once a gangway is placed;
• The condition of handrails is essentially unknown when a gangway is being placed as their condition is hard or impossible to meaningfully gauge prior to accessing the vessel due to limited visibility of the rail and also the possibility that damage or rust is not observed or has been painted over.

[21] Given the elements brought forth in the appellant's testimony, it is the appellant’s opinion that he and other employees at Neptune were exposed to a danger due to the respondent's practice. The appellant suggests further that I must also consider whether the gangway practice itself is actually a danger under the definition of the Code, such consideration needing to take account of the general duty of employers under section 124 of the Code to ensure protection of the health and safety of employees at work, notwithstanding specific duties under section 125 and the Regulations, such general obligation needing to be interpreted broadly (Western Stevedoring Co. v. International Longshoremen's and Warehousemen's Union, Local 500, Decision No: 97-011).

[22]  In this regard, the appellant refers to the telling wording used in the legislation that evidences the importance given by Parliament to the general obligation and the assertion by the Regional Safety Officer in the preceding case to the effect that:

[...] [S]ection 124 obliges every employer to ensure that the environment, administration, procedures, materials and tools are designed, established, used, monitored and maintained in a manner that ensures that the health and safety of persons granted access to the workplace is protected. Section 125 provides definition and specification to this requirement to the extent that Parliament was able to anticipate the hazards in the workplace and to the extent it was able to prescribe comprehensive standards. In such cases section 125 applies, but again, the legislation is clear that nothing in section 125 limits the generality of section 124.

[23] According to the appellant, under the Code, an appeals officer is vested with broad powers that make it possible for the latter to “vary, rescind or confirm” a direction that has been brought to appeal, and to issue any direction that the appeals officer considers appropriate.

[24] Regarding a situation that arises with a work refusal, the appellant submits that, in addition to the wording of the Code that authorizes an appeals officer to inquire into the circumstances and reasons of a ministerial delegate's findings, case law dictates that the second part of an appeal officer's authority calls for arriving at the correct decision from a health and safety perspective.

[25] Noting that under the legislation, the first condition to validate recourse to a work refusal is that the refusing employee “must have reasonable cause to believe” that he or another employee is exposed to a danger, the appellant contends that the first issue to be determined by the undersigned is not whether there was an actual danger, when the appellant was to access vessels at Neptune via a gangway resting on handrails, but only whether the latter had reasonable cause to believe that danger was present, and that the case law dictates that the threshold to meet in establishing this belief is necessarily low, so as to ensure that workers can meaningfully exercise their rights (Court v. John Grant Haulage Ltd., 2010 CIRB 498 at par.107). In this regard, the provisions of the Code, including the definition of the word danger therein, must be read broadly, having in mind the purpose of the legislation, which is remedial (Keith Hall & Sons Transport Limited v. Wilkins, 2017 OHSTC 1 (Keith Hall)).

[26] That definition, or rather its most recent version enacted in 2014, speaks of imminent or serious threat in terms of a hazard, condition or activity that would constitute “danger”, qualifiers that have been interpreted to mean, in the case of an imminent threat, one that can reasonably be expected to cause injury or illness soon, regardless of the seriousness of such an injury or illness, while comparatively in the case of a serious one, such a threat can be reasonably expected to cause severe or substantial injury or illness at some point in the future, be that days, weeks, months or even years (Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson) and  Keith Hall). Assessment of the existence of danger requires application of a three question test that has been enunciated in Ketcheson as follows:

• 1) What is the alleged hazard, condition or activity?
• 2) a) 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
  b) 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?
• 3) Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

[27] Common to either type of threat is the notion of reasonable expectation of occurrence. The appellant submits that such a notion was discussed in Keith Hall in the following terms:

[40] It also warrants noting that the concept of reasonable expectation remains included in the amended definition. While the former definition required consideration of the circumstances under which the hazard, condition or activity could be reasonably expected to cause injury or illness, the new definition requires consideration of whether the hazard, condition or activity could reasonably be expected to be an imminent or serious threat to the life or health of the person exposed to it. In my view, to conclude that a danger exists, there must therefore be more than a hypothetical threat. A threat is not hypothetical where it can reasonably be expected to result in harm, that is, in the context of Part II of the Code, to cause injury or illness to employees.

[41] For a danger to exist, there must therefore be a reasonable possibility that the alleged threat could materialize, i.e., that the hazard, condition or activity will cause injury or illness soon (in a matter of minutes or hours) in the case of an imminent threat; or that it will cause severe injury or illness at some point in the future (in the coming days, weeks, months or perhaps even years) in the case of a serious threat. It warrants emphasizing that, in the case of a serious threat, one must assess not only the probability that the threat will cause harm, but also the seriousness of the possible harmful consequences from the threat. Only those threats that can reasonably be expected to cause severe or substantial injury or illness may constitute serious threats to the life or health of employees.

[28] As to the potential for handrail collapse in the case of the two vessels targeted by the appellant’s refusals, the latter submits that assessing such a possibility, to wit that a handrail would not be able to bear the weight of a gangway, would have been nothing more than a gamble, yet not hypothetical, as made evident by two such occurrences in recent years and thus, were a handrail to collapse with someone standing on the gangway, the risk of injury would be high.

[29] The appellant submits to have provided evidence that damage to handrails has been observed in the past, with gangways being placed on such damaged or dilapidated handrails, that such handrails are often damaged during loading or unloading, with the quality of repairs of previous damage often unknown. The appellant recognizes that, while the risk of particular handrails collapsing imminently, whether looked at generally or in the case of the two vessels involved in the refusals, would be or would have been difficult to predict, the position taken by the appellant is that the respondent's practice undoubtedly presents a serious threat to life or health in the longer term, particularly because operations foremen and others have no alternative means of accessing the vessels or choice of moving gangways to another part of a handrail where such has collapsed to ensure continued access to a vessel.

[30] The appellant agrees with the respondent that, for the most part, vessels arriving at Neptune are in reasonable condition, although this may vary. However, its position is that the condition of a vessel matters little because, regardless of such a condition, employees are forced to rely on handrails to access ships, even if this goes against their best judgement as to what is or is not safe.

[31] The appellant acknowledges that the respondent provided evidence in its own case through Mr. Sotres, recognized as an expert in maritime architecture and who, in general, supported the position of the respondent regarding the placing of a gangway on a vessel's handrails. However, the appellant is of the view that Mr. Sotres’s report is insufficient to show that the respondent's practice is safe because Mr. Sotres reviewed photographs of only one of the vessels involved, considered simply the dimensions of one vessel's handrails while not being in a position to consider other factors such as whether said handrails had been damaged, been properly welded or had rusted and been painted over.

[32] The appellant considers the question examined by Mr. Sotres to have been too narrow, in that it considered whether or not a ship's railing could hold the vertical load of a gangway with a maximum of four people on it, the calculation being made using a particular set of criteria regarding dimensions and a particular type of metal, but not considering the strength of various parts or locations of the handrails on particular vessels such as the ones involved in the present cases. Of particular concern regarding the expert report, the appellant submits that it:

• Did not consider horizontal loading or torsion caused by the fore and aft movement of the ship;
• Did not consider at length the impact of damage, rust or bad welds on the handrails;
• Formulated a recommendation that the appellant considers impossible to satisfy to wit, that preceding the placement of the gangway on a ship's handrail, it be measured and inspected to be in “good condition”; and
• Did not take into account that additional loads are often placed on the gangway (people, snow, supplies).

[33] In the appellant's opinion, by stating the primary purpose of handrails to be the prevention of crew from falling off the vessel, Mr. Sotres confirmed that handrails are not designed to hold the weight of gangways, and that, by indicating Mr. Sotres's inability to find “best practices” regarding the safe placement of a gangway on handrails, he essentially confirmed the absence of studies or regulatory guidelines to ensure that the practice is safe. The appellant further emphasizes Mr. Sotres’s comment regarding photos of slightly bent handrails that he was shown during the hearing, that being to the effect that Mr. Sotres would not recommend placing a gangway on those sections shown in the photos, as meaning that the report solely considers “perfect conditions” and does not consider actual conditions of handrails encountered by employees in general, in particular by the appellant at Neptune.

[34] While the respondent may have alluded to the possibility of preventing the collapse of a gangway by having it held up by a crane or a shiploader pending inspection of the handrails, the appellant points to the respondent’s policy that prohibits working under or close to a suspended load and submits that such a proposal does not address the issue at hand, which is the fundamental risk of accessing a vessel via gangways that are resting on handrails after said gangway is unhooked from a crane or shiploader.

[35] Based on what precedes, the appellant contends that the practice meets the first part of the test set in the Ketcheson decision and confirmed in Keith Hall, to wit, that there is a “reasonable possibility” that the risk at issue will result in serious injury at some point.

[36] The appellant bases his conclusion on the following points:

• The hazard/activity relates to the practice of accessing vessels by means of a gangway resting on top of a vessel's handrails rather than on the solid structure of a bulwark or on the deck of the vessel itself;
• While the activity of accessing vessels in this manner may cause an imminent risk, given the unpredictable nature of each individual handrail, it certainly presents a serious threat to the life or health of a person exposed to this risk over the long term;
• A fall from height due to a handrail collapse while a worker is on the gangway could result in serious injury or death. While the risk would be particularly acute when a vessel is high in the water and the fall is from a greater height, even a fall from a lower height would likely result in serious injury or death;
• The threat to life and health existed before the activity could be altered. At present, the respondent has not changed the practice at issue despite longstanding discussion and the ''pledge'' after the work refusal that an alternative means of access would be explored. At the time of the work refusal, the appellant and other employees were required to and continue to access vessels in a manner that the appellant believes to be unsafe.

[37] Taken as a whole, it is thus the appellant's position that he had reasonable cause to view the respondent's practice as dangerous and contrary to the Code.

[38] Apart from its conclusion that the practice is dangerous and contrary to the Code, the appellant also submits that it is contrary to the relevant regulations governing means of access, in particular section 12 of the Regulations, and quite forcefully contends that the ministerial delegate failed to conduct a proper investigation of the appellant's work refusals.

[39] In the present case, the ministerial delegate made a finding of “no danger.” However, the appellant contends that it is clearly evident from the ministerial delegate’s testimony that such a finding was made without any meaningful consideration of whether or not the respondent’s practice conformed to the relevant laws and regulations and also without investigating any of the factors that impact on the safety or danger of the practice, keeping notes of his investigation or even providing a written decision beyond the words “no danger.”

[40] Also, most confusingly for the appellant, is the fact raised in the ministerial delegate's testimony, that, in making his findings, the latter appears not to have considered at all whether placing a gangway on a vessel’s handrails complied with the Regulations. While he referenced certain international protocols, the ministerial delegate did not appear to have considered or to know the requirements for gangways under the Regulations. As to his determination,  it is put forth by the appellant that one can derive from the ministerial delegate evidence at the hearing that the ministerial delegate:

• Did not inquire about the age of the vessels;
• Did not know the place of construction;
• Did not know how the vessels were regulated;
• Did not review the respondent's policies on gangways and their placement;
• Did not ask if there had been previous incidents or accidents with the gangways;
• Did not know whether or not the handrails at issue had previously been damaged;
• Did not take any measurements of the railings;
• Did not know if the handrails had been designed to hold a gangway;
• Did not know the angle of the gangway;
• Did not know that the vessels at Neptune move with the tide and move fore and aft; and
• Did not move the gangway to inspect the condition of the handrails where it rested.

[41] Of particular interest is the evidence regarding subsections 12(3) and 12(4) of the Regulations. Both the appellant and the ministerial delegate share the view that at the time of the work refusals, the appellant’s comprehension of what was meant by “bulwark” in the Regulations was a vessel's toe board, to wit, the piece of metal extending a few inches above the deck along its outer perimeter, a comprehension now agreed by the appellant as being wrong, since, as confirmed by the ministerial delegate, a bulwark is part of a vessel's structure running along a vessel's side, is made of metal plates, is not a toe board and is now absent on most vessels.

[42] It is argued by the appellant that the ministerial delegate testified that vessels now use handrails along the sides of a deck, as those are both cheaper and lighter than a bulwark, and that, had the gangway rested on a vessel's toe board instead of the handrails, there would have been no need to consider a bulwark, as the gangway would not emerge 0.35m or more above the deck and subsections 12(3) and 12(4) would find no application.

[43] The ministerial delegate, however, as submitted by the appellant, failed to take the next obvious investigatory step of considering whether or not the gangway, as it was placed, was compliant with the Regulations. The appellant submits that this was not the case, given the requirements of subsections 12(3), 12(4) and 12(8) of the Regulations regarding access to a vessel being more than 0.35m above the deck and the requirement that the means of access to the deck from the gangway be firmly secured to the bulwark or fastened securely.

[44] The appellant also points to other shortcomings of the ministerial delegate’s investigation relative to safe access to a vessel and the apparent misunderstanding by the latter of a number of critical facts that would have been relevant in determining the safety of the respondent’s practice.

[45] As such, the appellant notes the inconsistency between the ministerial delegate noting that a vessel at berth at Neptune is secured and does not move, and the appellant’s evidence that a vessel, even if moored properly, moves fore and aft and with the tide in ways that place torsional loads on the handrails at the point where a gangway rests on the handrails, loads that impact on the safety of the practice. It is the appellant's submission that the testimony of the ministerial delegate demonstrates that the latter neither asked whether the vessels moved when at berth nor investigated the mooring lines, something that would have been reasonable in determining the issue, given the wording of paragraphs 12(5)(b) and 12(5)(c) of the Regulations that require gangways to be installed in a manner that “reduces movement” and be suitably rigged and maintained “to compensate for the movement of the vessel”.

[46] Furthermore, given the requirements under the Regulations at paragraph 12(5)(f) and subsections 12(9) and 12(10), the appellant notes that the ministerial delegate did not observe whether lifebuoys were strategically placed, nor whether there was a safety net under the gangway in either case or whether this was possible or needed. Pointing out that the evidence shows that there was no net, the appellant underlines that the respondent does not use safety nets under its gangways and that there are no secondary connections between the gangways and the vessels.

[47] Given all of the above, it is the appellant's conclusion that the respondent's practice is not compliant with the Regulations and does not provide a safe means of access onto vessels. As a whole, it is the appellant's submission that the ministerial delegate’s evidence shows that the latter failed to meaningfully investigate and evaluate the appellant's concerns both with respect to the issue of safety generally and to the relevant laws and regulations.

[48] As such, the appellant requests that I vary the decisions arrived at by the ministerial delegate and issue directions to the respondent to the effect that it terminates its contraventions of the Code and the relevant regulations. More specifically, the appellant asks that any directions by the undersigned reflect the requirements of the Regulations, in particular that, absent a bulwark, a gangway must rest on the deck of a vessel with at least one end fastened securely.

Respondent’s submissions

[49] In general, the respondent supports the ministerial delegate’s determination that the means of access onto the two vessels at the center of the present case and the attachment of the gangways to the said vessels, at Berths 1 and 2 respectively, on February 8, 2018, did not constitute a danger within the meaning of the Code.

[50] Generally, the respondent’s submissions formulate a description of facts that is essentially the same as the one made by the appellant and it is therefore not necessary to repeat that description herein. There are, however, some elements that should be underlined. The respondent submits that at Neptune's Berths 1 and 2, vessels are ordinarily accessed by means of a gangway, one end resting on the dock and the other on the vessel. According to the respondent, in many if not most cases, the vessel end of the gangway rests on the vessel railing.

[51] As to the appellant’s work refusals, the respondent notes that the appellant informed the respondent of his refusals upon his arrival at the work place, prior to the commencement of his shift, stating that he had made the decision to refuse to work during the previous evening when in attendance at a union meeting where he had told those present that he was going to “take a stand”, the appellant's position expressed at testimony being that the placing of the gangway on a vessel's handrails and not securing it to a bulwark contravened the Regulations and was unsafe.

[52] The respondent submits that at the outset of his investigation, the ministerial delegate informed the appellant that bulwarks are no longer commonly used, which explains why the gangway was not placed on a bulwark. Also, according to the respondent, once the ministerial delegate had spoken to the parties, the evidence of both the appellant and the ministerial delegate was that the ministerial delegate accessed the vessel by the gangway, proceeded to inspect the handrails and stanchions for bends, worn paint or rust, considered the fact that the gangway had a shepherd’s hook securing it to the handrail, was resting on a stanchion which was in good condition and reviewed the welding points of the stanchions for rust or deterioration.

[53] The respondent submits that the ministerial delegate knew that stanchions were made according to marine classifications, that resting a gangway onto a vessel's handrail was a common practice and noted the presence of stairs leading from the end of the gangway to the deck of Vessel 1, which were a means of safe access. The respondent is of the opinion that the ministerial delegate reached his conclusion that the gangway did not pose a danger within the meaning of that notion in the Code on the basis of his examination of the gangway, handrails and stanchions on Vessel 1 and of his knowledge of marine classifications.

[54] The appellant repeated his refusal for Vessel 2 upon being informed of the ship-specific determination regarding Vessel 1 by the ministerial delegate and, according to the respondent, he did so while not knowing the conditions of Vessel 2, never having been on that vessel and singularly raising as justification the fact that the gangway was placed on Vessel 2's handrails. The respondent submits regarding the second refusal that the ministerial delegate conducted the same investigation as he did for Vessel 1, made the same findings and reached the same conclusion that the gangway did not pose a danger within the meaning of the Code.

[55] According to the respondent, I need to consider three issues in deciding on this appeal:

• Did the gangways to Vessel 1 and Vessel 2 constitute a danger within the meaning of the Code on February 8, 2018?
• Do I have the jurisdiction to consider whether it was a breach of the Regulations to rest the gangway on the handrails?
• In the affirmative, was the respondent in breach of the Regulations on February 8, 2018?

[56] Regarding the first issue, the respondent points to a number of legal principles that must find application, starting with the fact that, pursuant to subsection 128(1) of the Code, which governs situations under which an employee may refuse to work, the legislation requires that such a right may be exercised solely “if an employee while at work has reasonable cause to believe” that one or more of the situations described in the provision as warranting the exercise of that right exist.

[57] Furthermore, the presence of a danger needs to be evaluated on the basis of the definition of “danger” in the Code, such a definition having come into effect in October 2014 and having been commented upon in Ketcheson as follows:

[186] In summary, the legislative evolution of the definition of “danger” suggests that, in spite of some similarities in terminology, the 2014 definition is different in nature from its predecessors – both of them. It is neither a reversion to a pre-2014 “imminent danger”, nor is it merely a simplification of the 2000-2014 definition. There are two types of “danger”. They are both high risk, but for different reasons. The new definition adds a time frame for assessing probability. It adds the concept of severity of harm. In the context of the rest of the Code, a “danger” is a direct cause of harm rather than a root cause.

[58] The appeals officer in that case formulated a three-part test, described previously, to assess the presence of danger, illustrating the presence of the said time frame in distinguishing between imminent and serious threat.  An “imminent threat” requires the appellant to establish that there is a reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours); the degree of harm can range from minor (but not trivial) to severe. Conversely, a “serious threat” requires that the appellant establish that there was a reasonable expectation that he would be faced in the days, weeks or months ahead with a situation that could cause him serious harm (not minor, but severe).

[59] In another case, Brink's Canada Ltd. v. Dendura, 2017 OHSTC 9, the respondent points to the language used by the appeals officer to the effect that an alleged threat could not be hypothetical:

[142] [I]n order to find that an activity may “reasonably be expected to be a [...] serious threat to the life or health of a person exposed to it”, there must be more than a purely hypothetical threat. A threat is not hypothetical where it can reasonably be expected to occur and result in harm, that is, in the context of Part II of the Code, to cause injury or illness to employees.

[60] On the application of the first question relating to what is the activity alleged to represent a hazard, the respondent is not at issue with the appellant that it is the practice of placing a gangway on a vessel's handrail rather than on a bulwark.

[61] As to the second part of the test, regarding whether the activity could reasonably be expected to represent either an imminent or a serious threat, the respondent points to the fact that in both instances, there is a reasonableness requirement put on the employee, signifying that the employee initiating the refusal must have reasonable cause to believe the latter is facing a danger. On the question of whether, on the date of the refusal, there existed a reasonable expectation of imminent threat, the respondent submits that the evidence clearly shows that this was not the case. The respondent bases its conclusion on three factors.

[62] First, the respondent points to the ministerial delegate's inspection and the results of such where there was nothing that gave the ministerial delegate any concern regarding the condition of the handrails. The respondent recognizes that the ministerial delegate could have been more precise and detailed in his evidence, but argues that the latter clearly relied upon his knowledge of the standards that govern the construction of vessels and the regulatory regime which ensures that vessels are seaworthy and safe for their purposes. Added to this, in the opinion of the respondent, is the fact that the evidence provided by Mr. Sotres serves to put the ministerial delegate's evidence in context. Although the ministerial delegate could not list the specific requirements of a vessel, he nonetheless knew that bulwarks are very rare on this type of vessel, with the practice at issue being wide ranging and safe, based on the strict requirements vessels must observe. The respondent notes in particular that the examination of the handrails by the ministerial delegate was exactly what Mr. Sotres recommended should be done.

[63] The second factor concerns the stays of Vessels 1 and 2 at Neptune's berths. The vessels remained at Berths 1 and 2 for three days after the work refusals, with the gangways continuing to rest on the handrails and to be used during that time without issue.

[64] Thirdly, the respondent puts forth that the consideration of the issue of imminence should take into account the 12 years work history of the appellant at Neptune. Mr. Foy’s testimony at the hearing established that, on average, approximately 200 vessels dock at Berths 1 and 2 each year, with a gangway the means of access to those vessels in every case, meaning, according to the appellant, that he likely used a gangway to access upwards of 2,400 vessels over the years, the vast majority of those ships having handrails upon which to rest the gangway, since bulwarks are quite rare and ships with bulwarks only appear at the berths every few months. The respondent notes that, despite the frequency of the appellant’s use of gangways resting on handrails, the latter has never seen a handrail break under the load of a gangway nor has he ever seen a gangway collapse. The respondent offers, from what precedes, the opinion that it would be hard to imagine under what circumstances, what it describes as a success rate, would constitute a gamble (“crapshoot”) as to whether the handrails were in the condition necessary to hold the weight of the gangway.

[65] On the question of whether there existed a reasonable expectation of a serious threat, the respondent centers its arguments in this regard on the narrow scope of the Code's refusal provisions. The respondent refers to the decision in Isinger v. TSI Terminal Systems Inc., 2013 CIRB 688 (TSI), involving a situation where employees had failed to identify any specific danger, claiming instead to be facing a danger because of an employer's unilateral changes to work processes and procedures and its continued refusal to abide by measures such as directions and provisions under the Code. In that decision, it was concluded that the employees could not reasonably be expected to face a danger where no specific danger was alleged, their only justification for refusing being to bring compliance issues to a head. The respondent finds explanation to this conclusion in the narrow scope of the refusal provisions in the Code, which are “intended to be used as an emergency measure” and where “the bulk of the effort to reduce risk and protect employees lies elsewhere” (Ketcheson). The respondent thus submits that, absent a specific dangerous condition present on Vessels 1 or 2, on the day of the refusal, the appellant cannot have reasonable cause to believe that he faced a danger on that day.

[66] Along this line, the respondent suggests that, similar to the TSI decision above, the work refusal that is the subject of the present appeal was not used as an emergency measure but to bring alleged compliance issues to a head. The appellant himself admitted never having seen Vessels 1 or 2 at the time of the refusal, there being nothing about the specific vessels that caused him concern for his safety and not having asked any co-workers as to the condition of the handrails on these vessels. The respondent insists on the fact that at no time during his testimony did the appellant even allege that his concern was with one or the other vessel. Rather, he had decided the evening before that the gangway contravened the Regulations and the work refusal was based on this alleged contravention.

[67] The respondent notes that during his cross-examination, the appellant himself went so far as to admit that, at the time of his work refusals, he had no idea whether there was an actual danger on Vessel 1 or Vessel 2, thus establishing through his own evidence that he did not have reasonable cause to believe that a danger was present with the gangways on Vessels 1 or 2 on February 8, 2018.

[68] Apart from the reasonable expectation issue, the respondent also raises the matter of whether the gangways resting on the handrails on Vessel 1 or Vessel 2 in fact posed a serious or imminent threat. The respondent holds the position that there was no such threat and finds support for this in both the Tribunal's case law as well as in the evidence. First, in Ketcheson, the appeals officer stated that:

[198] [...] [A] threat entails the probability of a certain level of harm. Some risks are threats and some are not. A very low risk, either because of low probability or because of low severity, is not a threat. Both probability and severity each have to reach a minimum threshold before the risk can be called a threat. It is clear that a low risk hazard is not a danger. A high risk hazard is a danger.

[69] It is the respondent's view, in light of the definition of “threat”, that an imminence threshold needs to apply to and satisfy both probability and severity elements before a risk can be considered a threat, meaning that to determine whether the threshold has been achieved, one must attempt to quantify the likelihood of the risk materializing.

[70] Applying this rationale to the facts of the case, it is the position of the respondent that the evidence has established the likelihood of the gangway detaching from the handrails as being extremely low. While the appellant may have had a long held concern about the practice at Neptune and that it might at some point in time materialize as a serious threat, the focus in these cases of refusal to work needs to be elsewhere, as a practice cannot constitute a danger unless the employee is actually confronted with a situation that could reasonably be expected to cause serious injury. In Ketcheson, the appeals officer stated:

[149] It would not be a “danger” if an employee was concerned with a policy in the abstract about the provision of protective devices such as spray and handcuffs. If the effect of the policy was that an employee was actually faced with a situation where the spray and handcuffs were necessary, then the lack of such PPE could be a “danger”.

[71] The respondent submits that usual working conditions, such as those at issue regarding the placing of gangways, will rarely pass the threshold from mere possibility to reasonable possibility. Cited as support for this is the decision of the appeals officer in City of Ottawa (OC Transpo) v. MacDuff,2016 OHSTC 2 (City of Ottawa), where the health and safety officer's danger direction was rescinded as the refusing employee could not point to anything specific about his working conditions on the day of refusal that constituted a reasonable possibility of danger:

[156] [...] The evidence established that the conditions in Mr. MacDuff's workplace were his usual working conditions and that the task /activity that he was scheduled to perform was nothing other than his normal duties as a bus operator. He had been performing those duties for 13 years.

[72] The respondent states that the appellant does not dispute that he could not point to anything specific with Vessels 1 and 2 that would constitute danger. It was merely the practice that he considered to be dangerous, despite the fact that he has been accessing vessels via a gangway resting on handrails since 2006 without issue.

[73] In Nolan v. Western Stevedoring, 2017 OHSTC 11 (Nolan), a similar argument of long term concern with the use of certain equipment at the work place was used to challenge a decision that a danger does not exist and caused the appeals officer to hold that such an argument seemed more concerned with the probability of injury occurring at some point in the future and not on the day of the refusal, which was the focus of the appeal. Yet, while in rescinding the decision that a danger does not exist, the appeals officer reasoned that the focus of his analysis was the probability that the alleged hazard, condition or activity would cause serious (i.e., severe) injury in the days, weeks or months following the day of refusal, the motive for rescinding was photographic evidence of the poor condition of the equipment and the occurrence of an accident with said equipment a mere 3 days after the refusal.

[74] The respondent submits that in the present case, the situation is opposite, since the documentary evidence as well as the ministerial delegate's testimony support that the handrails were in good condition on the day of the refusal and for the duration of their being docked at Neptune's berths, and no issues were encountered with either vessel.

[75] The low probability of a serious threat is made more evident, according to the respondent, when the work refusal is viewed against Mr. Sotres’s testimony and report, in which he concluded that a ship’s handrail can easily support the Neptune Terminal gangway (app. 3,650 lbs), 4 persons weighing 1,000 lbs in total, as well as a 1,500 lbs snow load, the weight being evenly distributed through use of a six-foot wide shepherd's hook over stanchions as the handrail could not by itself hold such a weight. The handrail would support only approximately 50% of the total weight with the remaining approximate 50% supported by the roller end of the gangway resting on the ground.

[76] The respondent submitted that Mr. Sotres explained that use of the six-foot half pipe (shepherd's hook) would serve to apply the load directly to the stanchions (handrail post) which, by regulation, cannot be more than five feet apart, ensuring support by at least one stanchion in every case. The respondent notes also that Mr. Sotres’s calculations show a stanchion vertical load support capability of 30,214 lbs in optimal ship conditions and made of the softest steel acceptable for a vessel under classification, such a capacity representing almost ten times the actual weight being distributed by the gangway.

[77] In less optimal conditions (90% of requisite metal necessary to retain classification), the respondent notes Mr. Sotres’s testimony to the effect that a handrail post would still retain a vertical load or buckling capacity of 22,000 lbs, this being significantly higher than the weight placed on the handrails by the gangway. Furthermore, Mr. Sotres explained in testimony that the buckling load or capacity of a stanchion would remain the same, regardless of whether the stanchion was in the middle or at the end of the shepherd's hook, although his recommendation was to always place the gangway over two stanchions, even if one is enough, as it could still hold almost ten times the load of the gangway, absent a brace on the stanchions which would make stanchions stronger and increase the buckling load.

[78] Mr. Sotres also indicated that, in terms of damaged railings, additional welding or slight bends would not affect the buckling load, although a serious bend might. On the pictures of bends of the railings of the vessels at issue, the respondent notes that Mr. Sotres expressed the opinion that, since the stanchions did not appear damaged, the buckling load would not be affected and the handrails would have the capacity to support the weight of the gangway. In a nutshell, the respondent submits that Mr. Sotres's evidence, when considered with the inspection done by the ministerial delegate, strongly supports the conclusion that the probability that the gangways placed on Vessels 1 and 2 on February 8, 2018, would constitute a serious threat is extremely low.

[79] This being said, it is the submission of the respondent that said probability must also be considered against the information and resources available to the employees when placing the gangway. As such, the “ship sheet” is available to the foremen before the vessels are docked and provides information regarding where and when the ship was built and whether an inspection is required. Additionally, the respondent notes the evidence that, although it is the foreman or millwright who directs where the gangway is to be placed, the operator of the shiploader or the ship crane used to lift the gangway into place is seated higher than the deck, is looking down at the railings with lighting and is in radio contact with the foreman or millwright on the dock, making it possible, at least in theory, for information on the condition of railings to be sought and obtained prior to the foreman or millwright entering the vessel from the gangway, this contrary to the appellant’s testimony that this is not possible.

[80] The respondent also points to the evidence by the appellant to the effect that the gangway is not disconnected from the shiploader or crane until the millwright or foreman has climbed the gangway to the vessel to finish directing the operation, and to the fact that it is not the practice of the employees or of the latter (“that's not what we do”) to inspect the condition of the railings prior or after the gangway has been disconnected, although the gangway placement procedures when using a shiploader or a ship's crane, those documents being in evidence, indicate under title “ship’s railing” that it should be ensured that the conditions of the handrails show that it can support the gangway. The respondent points to testimony from another employee, Rodney Callele, to the effect that, when confronted with a handrail in poor condition, he went to the top of the gangway prior to disconnection and inspected the handrails in an effort to find a stanchion in good condition where the gangway could rest on the handrails.

[81] In summary, the respondent submits that the expert report and testimony, as well as the ministerial delegate’s inspection and the resources and information available to employees when resting the gangway onto a vessel's handrails, all support the conclusion that placing the gangway onto the handrails of Vessels 1 and 2 on February 8, 2018, could not reasonably be expected to represent a serious threat to the life or health of the appellant. In addition, the respondent argues that the appellant has failed to point to any specific issues with the handrails on Vessels 1 or 2 on the date of the refusal. It is opined that the frequency of the practice at Neptune without any issue arising, along with the evidence of Mr. Sotres and the ministerial delegate, support the conclusion that the handrails were in good working condition and could not reasonably be expected to pose an imminent or serious threat to the appellant on February 8, 2018.

[82] The second issue raised by the respondent concerns the jurisdiction of the undersigned to consider whether it was a breach of the Regulations to rest the gangway on the handrails. It is the position put forth by the respondent that the undersigned does not have such jurisdiction. The essence of the rationale of this position is centered on the scope of the review jurisdiction of an appeals officer. According to the respondent, the scope of such jurisdiction on appeal is to review the decision of the ministerial delegate and, therefore, an appeals officer will not address any issues that were not addressed in the ministerial delegate's investigation report. The respondent claims support for this position in Nolan,where the appeals officer concluded that:

[41] [T]he Ministerial Delegate did not indicate that any specific provision of Part II of the Code was contravened nor did he issue directions (i.e. contravention directions) to the respondent under subsection 145(1) of the Code. Accordingly, I find that the issue of whether the respondent contravened the provisions of the Code, the COHSR or the MOHSR is beyond the scope of this appeal.

[83] In the opinion of the respondent, the appeals officer in Ketcheson opined along the same line by stating that a contravention of the Code is not the basis of a work refusal:

[115] The respondent referred to the employer’s breach of several sections of the Code as a basis of his work refusal. The contravention of a provision of the Code or of the Canada Occupational Health and Safety Regulations [...] is not the basis of a work refusal unless the contravention is of sufficiently high risk so as to constitute a “danger”.

[84] On this, the respondent notes that the ministerial delegate’s decision in this case was to a similar effect in that it was limited to finding that there was no danger in placing the gangway on the handrails of both vessels while not indicating that any part of the Code or the Regulations were being contravened.

[85] Additionally, to the effect that the enforcement of a direction does not come within the bounds of an appeals officer's jurisdiction, the respondent refers to paragraph 89 in fine of Tessier v. Canada Post Corporation, 2017 OHSTC 13, and notes that the appeals officer drew attention to the apparent motivation of the refusing employee, which seemed to “sidestep the fundamental factual question that he had to establish to be successful in his appeal: that he was exposed to an imminent or serious threat at the time of his refusal” [underlining omitted], not whether the employer was in breach of a standard, regulatory or otherwise. On this issue of jurisdiction, the respondent concludes that the sole question to be considered at appeal is whether placing the gangways on the handrails of Vessels 1 and 2 presented a danger.

[86] Regardless of the respondent's opinion regarding the second issue relative to jurisdiction, the latter quite advisedly opted to broach the issue of whether it was in breach of Regulations on the day of the appellant's work refusals. Referring to subsections 12(1), 12(2) and 12(3) of the Regulations under the title “Means of Access”, where it is generally stated that employers are to provide a safe means of access for employees to board and disembark from a vessel, the respondent opines that the means of access created by placing the gangway on handrails is not a breach of the Regulations. Invoking the ministerial delegate’s extensive history in the marine industry, the latter's familiarity with the Regulations and the focus of section 12 on means of safe access, the respondent draws attention to the ministerial delegate's conclusion given in testimony that the means of access onto both vessels was safe.

[87] While the respondent may acknowledge that subsections 12(3) on safe access to the deck by steps, ladder or other structure and 12(4) on securing such to the bulwark so as to prevent shifting, slipping or pivoting did find application to both vessels, the respondent disagrees that it was in breach of subsection 12(4) because the gangways were placed on handrails, invoking the inherent and clear purpose of this last provision which is to ensure that the steps, ladder or similar structure (not the gangway) is prevented from shifting, slipping or pivoting.

[88] Noting that it was the evidence of the appellant himself that the stairs did not pivot, the respondent underlines the statement of the appellant in testimony that he was not concerned for his safety when he was on the stairs, those having rubber feet, since it was the gangway that was his concern, not the stairs. As to the fact that, as testified, most vessels no longer have bulwarks (to which the Regulations require the steps to be secured), the respondent argues that the legislator cannot have intended to enact regulations that are currently close to impossible for an employer to abide by, given the rarity of bulwarks, and the ministerial delegate's focus was whether there was a safe means of access, which he concluded there was, as the stairs at the end of the gangway were firmly affixed to the gangway itself and thus were prevented from pivoting, shifting or slipping, thus in compliance with the Regulations.

[89] The respondent asks that the decision that a danger does not exist be confirmed and the appeal dismissed.

Reply

[90] In its reply, the appellant divides its submissions into three parts that deal with distinct subjects: 1) the alleged danger; 2) the question of reasonable belief; and 3) the application of the Regulations.

[91] On “danger”, while the appellant recognizes that there is agreement between the parties regarding the activity at issue and that the definition of “danger” provides a notion of alternative between imminent and serious threat, his submission is that the work refusal mechanism is available to workers even where the threat is not imminent and that a key aspect of the risk is that workers are often unable to tell when a risk is imminent even though they know that the danger of being on a gangway when it collapses would be serious. The appellant argues, on the evidence, that it is not possible to meaningfully evaluate the strength of a handrail prior to placement and there are many limitations on where a gangway is placed.

[92] Referring to the testimony evidence, the appellant submits that, notwithstanding the respondent’s evidence, including that of Mr. Sotres, that handrails are safe to support gangways and that it is possible for the employees in place to identify and position the gangways in safe locations, this did not prevent the collapse of a handrail.

[93] As to the Nolan decision invoked by the respondent, the appellant points to the fact that the appeals officer in that case accepted that a certain practice amounted to a serious threat, partly because an incident occurred just a few days after the refusal, and notes that in the present case, two handrail collapses had occurred at Neptune in recent years, an element that serves to establish that it represents a risk that is real as opposed to hypothetical.

[94] Further, it was not necessary to show that the conditions were particularly unsafe on the specific day of the refusal, and it sufficed to show that conditions at that time could reasonably be expected to be an imminent or serious threat before the hazard or condition could be corrected or the activity altered (Keith Hall). In the case at hand, what the appellant has described as the hazardous condition or activity prevailing at the time of refusal continues to be to this day, thus justifying the issuance of a remedial order (a different situation than in Nolan where the practice at issue had been changed by the time of the appeal), and employees have continued to follow the same practice since the said previous collapses due to the fact that no other option exists. The fact that they have not been injured does not mean that they were safe in doing so.

[95] As to the ministerial delegate's conclusion that a danger does not exist, the appellant contends that such a conclusion does not carry much weight, given that the ministerial delegate did not conduct a thorough investigation and basically based his conclusion on impressions while lacking understanding of the applicable regulations. Along the same line, the appellant argues that the conclusion provided by Mr. Sotres that the practice at issue is safe, a conclusion on which the respondent relies, was arrived at through calculations based on a set of standard assumptions that call for next to perfect conditions, something that cannot be a certainty, as shown by the collapses to which the appellant referred. Noting that Mr. Sotres himself had agreed that gangways should not be placed on handrails with bends or which showed evidence of damage, the appellant points to the fact that Mr. Sotres had himself no knowledge of the history of any damage or repair to the vessel and that the photographs provided by the respondent evidence a vessel not in pristine condition. This limits the value of Mr. Sotres’s evidence, in the appellant’s opinion.

[96] By the same token, the appellant contends that the suggestion that an existing vetting process ensures that no “rust buckets” would come to Neptune does nothing to ensure that handrails are safe to receive gangways, because there is no evidence that those inspecting the vessels would look beyond the obvious purpose of handrails, which is to prevent crew members from falling off the vessel, to ensure their fitness to receive a gangway. Suggesting that a handrail inspection could be completed while the gangway was still suspended by having an employee brought onboard on a suspended load would not serve to resolve the matter, as this would be contrary to the respondent’s policies and itself an unsafe practice, reinforcing the reality that once the gangway is placed, it is impossible to closely inspect the handrail underneath.

[97] On the suggestion that the situation may represent a normal condition of employment, as was found in City of Ottawa, the appellant contends that it is not suggesting that it is always unsafe to access a vessel, but rather that the means at issue is unsafe. Noting that a risk will be considered a normal condition of employment where the risk remains after the respondent has satisfied what is referred to as the hierarchy of controls, the appellant contends that, in the present case, there is no evidence that the respondent has explored whether there are alternatives to the present set-up, alternatives that would be safer than the present one, and that, even though the respondent may have committed to finding a safer alternative, there is no evidence of any engineered solutions that may have been considered.

[98] According to the appellant, there are no nets or other fall arrest systems in place and no evidence of a systematic means of identifying the condition of a handrail prior to the gangway placement. This has the appellant contending that this is not consistent with an argument that the current level of risk is a normal condition of employment. In this regard, the appellant points to other terminals that he says have a practice of removing the handrails and placing the gangway directly on the deck of the vessel, something that would comply with the Regulations. In a nutshell, the appellant concludes that the evidence demonstrates that there are other means by which the respondent can reduce and eliminate the risks at issue here, and that there is no evidence that the feasibility of such has been examined. As a result, the respondent cannot rely on an argument that the current practice is a normal condition of employment to avoid the responsibility to change the practice.

[99] On the question of reasonable belief, the appellant contends that the evidence contradicts the position taken by the respondent to the effect that there was no “specific danger” at the time of refusal that would support a claim of reasonable belief that the activity constituted a danger. According to the appellant, it was made clear at the moment of refusal that the specific danger that was being invoked was that of physical injuries that would result from the collapse of a handrail with the appellant and others on the gangway. In this regard, the appellant points to the supportive position of the respondent's representative on the JOHSC as well as that of witnesses Callele and Hardwick. On this point, the appellant refers to the finding of danger in the Keith Hall decision where the circumstances of work during each assignment were sufficient to conclude the existence of a “danger” rather than there being a requirement to show the presence of a particular danger in association with a singular work assignment.

[100] Relative to this same issue of reasonable belief, it is submitted by the appellant that the fact that the issue at hand has been a matter of discussion for some time with the respondent without being resolved and that it may have been the intention of the appellant to bring about a resolution has no impact on the appeal and that it would be unreasonable to suggest that a worker is barred from making a work refusal simply because a matter has been previously discussed and not resolved. Such a situation would not affect individual rights under the Code where conditions justifying a work refusal come into being. Differently from the situations in the TSI and Tessier decisions, where there was no reference to a specific danger and the appeals officers still found it appropriate to make a finding with respect to whether the matter at issue presented a danger, in the present case, the appellant submits that he has given a clear indication of the danger at issue, to wit, accessing vessels via a gangway resting on handrails, and that it was reasonable to believe that the practice at issue was unsafe and posed a serious risk that was a proper basis for a work refusal.

[101] As to the issue on Regulations, or rather the respondent’s argument that the undersigned is without jurisdiction to consider whether the respondent was in breach of the Regulations, the appellant is of the opposite opinion, citing primarily the Code itself, which provides an appeals officer with a broad jurisdiction to vary, rescind or confirm a direction or decision of a ministerial delegate, and also arguing that the precedents referenced by the respondent on this point do not support such a conclusion, in particular in the Tessier decision, where, having found that the regulatory matter at issue was not clearly linked to a safety issue, the appeals officer found that the condition at issue in the refusal did not present a danger.

[102] In the case at hand, it is the position put forth by the appellant, as in Ketcheson, that the breach of the Regulations is sufficiently of high risk to create a danger. That matter is properly considered, both on its face regarding whether or not it is dangerous, but also in relation to regulations that are in place to ensure that workers are safe when they access vessels at work. As such, where subsection 12(1) of the Regulations requires generally that the means of access used to board and disembark from a vessel provide a safe passage between the vessel and shore, one cannot read that, in the absence of a bulwark to which would be secured the structure that would provide safe access to the deck, where the gangway's vessel end is located 0.35m above the deck (subsection 12(4)), as allowing the appellant to place a gangway onto anything whatsoever above the vessel's deck. The appellant argues that the parties and the ministerial delegate agree that the requirement of subsection 12(4) is not met when the access to deck structure is connected only to the gangway in the absence of a bulwark and the gangway rests on a vessel's handrails.

[103] With respect to the requirements in the Regulations, the appellant notes that having the gangway resting on handrails does not satisfy the requirements of subsection 12(5) of the same Regulations, in that it is not rigged to compensate for the movement of the vessel and thus leads to bends in the handrail and sudden movement of the gangway that presents a danger to those using it as a means of access.

[104] As a whole, it is the position of the appellant that failure to satisfy the requirements of the Regulations may lead to worker injuries, thus establishing the jurisdiction of the appeals officer to consider and make findings regarding compliance with the Regulations. The appellant thus distinguishes the present situation from the one that prevailed in the Nolan case, where the appeals officer had noted that the ministerial delegate had not indicated whether a specific provision of the legislation or regulations had been contravened and that regulatory compliance was not directly connected to the central issue at appeal and also that the regulatory issues had not been considered in the report or the evidence presented in the appeal.

[105] In contrast, the appellant claims that the ministerial delegate was advised of the appellant's concern that the practice was unsafe because of its failure to comply with the Regulations at the time of the work refusal, had made comments to the appellant on the work site regarding the Regulations and gave evidence on this at the hearing. Both parties raised that issue at the hearing and made submissions on this point. According to the appellant, no unfairness would result from a finding or directions regarding regulatory compliance.

[106] In conclusion, the appellant notes that the decision rendered by the ministerial delegate was extremely brief and failed to respond to the concerns raised by the appellant. The appellant submits that the ministerial delegate's failure to investigate properly and fully document the investigation he conducted and the decision he rendered should not prejudice the appellant's right to have the matter considered fully.

Analysis

[107] On February 8, 2018, the appellant registered two refusals to work with the respondent, pursuant to subsection 128(1) of the Code. The work refusal registration forms states quite laconically as reason for the refusal that “attachment of shore gangway to ship does not meet Code”, therefore stating a contravention to the Code, but makes no specific reference to either a provision of the Code or the Regulations.

[108] The appellant testified to being a union employee representative member on the JOHSC at the time of the work refusals. The appellant’s evidence, as well as the workplace investigation reports on the refusals to work, indicates that what led to the refusals was that concern with the gangway placement issue had been raised in the JOHSC some 18 months prior, with the issue not being resolved at the time of the refusals.

[109] The appellant testified that in the course of a union meeting that was held the previous evening, the gangway placement issue had been discussed and, given its long-standing nature, the appellant  had decided to take a stand the next day and refuse to work. At the hearing, the appellant testified to the effect that on his return from days off work on February 7 and 8, 2018, he was on safety duties and that at that time, he had had nothing to do with the vessels concerned, had not been there when the gangways had been installed and had seen nothing.

[110] The ministerial delegate’s testimony, confirmed by the appellant, was that the appellant was of the view that gangways needed to be attached to bulwarks and not be placed on handrails, a situation presented as a contravention to the Code and that the ministerial delegate, in concluding that a danger did not exist, had informed the appellant that few vessels still had bulwarks, that those were replaced by handrails and that the sole obligation under the legislation was the provision of “safe access” from shore to ship.

[111] On the other hand, the notice of appeal of the ministerial delegate’s decision, prepared on behalf of the appellant by an officer of the union to which the appellant belongs, appears conveniently to expand the original motivation of refusal to work by suggesting as grounds for appeal multiple contraventions of the Regulations, in addition to a contravention of paragraph 125(1)(a) of the Code on an employer’s obligation to ensure that all permanent and temporary buildings and structures meet prescribed standards.

[112] Given the basis and manner in which these refusals developed, it is necessary to have an overview of the refusal process in the Code as well as the essence of the recently amended definition of “danger” and the test for assessing a danger that has developed in case law. The appellant in the present case engaged in a work refusal pursuant to section 128(1) of the Code prior to the commencement of his shift on February 8, 2018. The wording of that provision makes it obvious that “danger” is the concept at the center of this right of refusal and that the notion of reasonable belief or “reasonable cause to believe” governs its proper application:

128(1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that [...]

[113] The notion of danger is also at the center of the Minister's power to issue, through an official delegated by the Minister, a direction where danger has been found or a decision of absence thereof. “Danger” is defined as follows:

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.

[114] When looked at simultaneously, one realizes that a common notion links the right of refusal and the notion of danger, that of “reasonableness”; in the first case, reasonable belief and in the second, reasonable expectation.

[115] That being said and prior to turning one's mind to the concept of danger, I believe it useful to examine the essence of the process under the Code that is a “refusal to work.” Over the years, and the case law, much has been said in this respect, but it will not be necessary to review the “refusal to work” mechanism in extenso, because the appeals officer in Ketcheson has commented profusely on this and I share the opinions he has expressed.

[116] The basic premise when one examines that right is that the wording of the provision in the Code (section 128) clearly defines such a right as being a personal right, the right of a person (an employee) to claim “danger” to himself when that person claims to be exposed to certain conditions or circumstances. In that respect, the appeals officer stated in Ketcheson that “the  contravention of a provision of the Code or of the Canada Occupational Health and Safety Regulations is not the basis of a work refusal unless the contravention is of sufficiently high risk so as to constitute a ‘danger’”, that is “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”, the meaning of hazard, in the words of my colleague, being more accurately described as “bifurcated into high risk hazards which are ‘dangers’ and which are subject of work refusals, and lower risk hazards, which are not ‘dangers’ and which are dealt with through mechanisms other than a work refusal”, such as the Internal Responsibility System (IRS).

[117] In this regard, I particularly align myself to the following comments by my colleague regarding the essence of the right to refuse dangerous work. As such, at paragraph 135 of Ketcheson, the appeals officer states that:

[135] It is understandable that the right to refuse to work is perceived by some as one of a dichotomy of measures to fulfill the purpose of the Code. It is work refusals that engage the attention of officials, lawyers, AOs and the courts. It must be kept in mind that this is a misperception. OHS isn't ''done'' through work refusals. It is done primarily through duties. If OSH was ''done'' through work refusals, work would grind to a halt.

[118] One can clearly derive from what precedes that resorting to the right of refusal is not limitless. To paraphrase my colleague, the right of employees to participate in the process of risk reduction is largely affected through the activities of employee representatives, singularly or as members of work place health and safety committees: The right of employees to refuse to work is not the normal, routine manner in which risk is to be driven down; it is an emergency backup (failsafe) mechanism when the main elements of the IRS have not been effective.

[119] At this juncture, one needs to recall that it is the appellant’s evidence that the decision to take refusal action was made by the latter within the committee and with the intention to take a stand and bring matters to a head, given what he perceived as lack of progress relative to the issue of gangway placement, and thus resulting in the involvement of a health and safety officer, now designated as an official designated by the Minister of Labour, to seek a determination.

[120] The general consequence of the refusal right being accepted as a “backup” or “failsafe” mechanism does not, in and of itself, mean that the exercise of that right is contingent on an employee having to resort first to means of resolution other than the refusal road prior to exercising that right. There are, however, parameters that guide such an exercise and in this, I make mine the words of the appeals officer in Ketcheson to the effect that such is not a limitless right:

[144] It is important to note that the right to refuse to work is not contingent on an employee having attempted to deal with OSH issues through means other than a work refusal. An employee can choose to refuse to work when he has reasonable cause to believe that there is a danger, regardless of what else has gone on before. It is a powerful and important right. Yet it is very clear from the design of the Code that it is intended to be used as an emergency measure and that the bulk of the effort to reduce risk and protect employees lies elsewhere.

[121] Where an employee chooses to invoke “danger” through the refusal process, the threshold to meet is higher than it would be where other means under the Code would be put to use.

[122] The parties in the case at hand have shown to be on the same page regarding the accepted meaning and interpretation to be put on the notion of “danger” in the Code, as well as the proper test to apply, defined again in Ketcheson, to determine whether it was present in the circumstances raised by the appellant. In addition, consideration of their respective closing arguments demonstrates a community of view as to there having been little to no potential of an imminent threat, as defined at recent case law, to which the appellant would have been exposed at the time of his refusal to work.

[123] Initially, and as it appears from the introductory portion of the present decision, the appellant formulated his refusal to work by claiming that the “attachment of shore gangway to ship does not meet the Code” and notwithstanding this very general formulation, this is the hazard at the center of this case. Having examined the internal investigation report as well as the notice of appeal, I am prepared to accept, for the sake of clarity and comprehension of the words “not meet the Code”, and being cognisant of the purpose of the legislation, that such an initial description may be interpreted as having been intended to cover suggested contraventions to paragraph 125(1)(a) of the Code as well as to paragraph 12(4)(a) of the Regulations, and as such, I will consider this to be a proper descriptive of the claimed hazard invoked as motivating the appellant's refusal action.

[124] As such “placement” is founded on the respondent’s practice of functioning in this manner; one can therefore consider that the claimed hazard involves the respondent's practice. This being said, however, this does not alter the substantive nature of the proposed hazard, to wit, contraventions to the Code and the Regulations. Nonetheless, I did point out above that the notice of appeal filed on behalf of the appellant, prepared and signed by another individual, in this case an officer of his union, suggested numerous additional violations of the Regulations, violations that obviously had not been raised specifically in the original refusal document and, if one is to give some credence to the testimony of the ministerial delegate in the absence of an explanatory investigation report, and to the testimony of the appellant and others, were not the main concern with respect to the placement of gangways.

[125] I thus find that these additional claimed violations exceed the scope of this appeal. Be that as it may, one cannot set aside the fact that the appellant chose to engage in a work refusal when he did, and this is made clear by the words used by the appellant both in his refusal form and even more so in his testimony at the hearing where, in essence, he admitted to not being aware of the actual situation concerning either vessel, not because there was a threat to him, imminent or serious, but because he was frustrated by the lack of response to his concerns regarding the respondent’s gangway placement practice, therefore a failure of the IRS, which he characterized throughout as contravening the Code and by extension, the Regulations.

[126] Having said this, and leaving aside what one would describe as the background, and what I would qualify as the questionable motivation of the appellant in exercising the personal right that is the right to refuse work in circumstances that are presented as constituting a danger to himself, one needs to consider the question as to whether there was an imminent or a serious threat to the appellant at the time of his refusal.

[127] As stated previously, both the right of refusal to work and the concept of danger have in common the notion of “reasonableness”, and the test to be used is constructed on the notion of “reasonable expectation”. Having identified above the hazard to be considered as being the gangway placement practice at Neptune, the question to be asked is whether this hazard could reasonably have been expected to be an imminent or serious threat to the life or health of the appellant on February 8, 2018.

[128] In Ketcheson, the appeals officer defined a “reasonable expectation” as comprising three elements, to wit, the probability the hazard will be in the presence of a person, the probability such will cause an event or exposure, and the probability the event or exposure will cause harm to the person. I agree with that definition. I will add to this that hypothetical elements are excluded.

[129] In my opinion, there is little doubt that harm, minor or severe, is possible from the scenario put forth by the appellant, that being the collapse of a handrail on which a gangway would be placed. However, that is not the issue, as what is possible does not equate to reasonable expectation. Nothing in the evidence put before me indicates that there was a reasonable expectation that the appellant would be exposed to such a hazard on the day of the work refusal and that he would suffer harm as a result.

[130] In his own testimony, the appellant indicated that, on the day of his formal refusal, as on the previous day when he formed the intention to resort to a work refusal, he had had nothing to do with the first vessel, was not present when the gangway was installed and had not seen anything relative to the situation. As for the second vessel, when informed of the case specific nature of the ministerial delegate's decision, the appellant also testified to never even having seen the vessel.

[131] It is clear that on all points, it is the actual practice that the latter considers to represent a danger. At the same time, recognizing that in his years of employment at Neptune, including his three years as an operations foreman, there has never been a gangway fall off a ship. Having in that span of time dealt with over 2 400 ships, the appellant has recognized that such a practice is not limited to Neptune and is common with other terminals. Furthermore, the appellant recognized that when he refused to work, he was relying on his reading and comprehension of the Regulations which, he understood at the time, require the gangway to be placed on the bulwark, a comprehension that he came to understand was not the import of the Regulations, and that as such, his decision was not based on the conditions prevailing on the vessels involved or on the actual gangways.

[132] The appellant further recognized that where at least one vessel was at berth for three days (5-8 February, 2018), the handrails on which the gangway was placed did not fail or bend, noting further that in his three years as operations foreman, he has seen 3 bent railings and that at least in two of those cases, the bending had not been the result of the gangway placement, such an occurrence being extremely rare. Moreover, one cannot avoid underlining the fact that the appellant chose to resort to a work refusal when he did, not because there was an imminent threat as defined previously, but because he felt that there had been no result to the lengthy discussions on the matter at the JOHSC and that he needed to take a stand and bring matters to a head.

[133]  It is true that one does not have to wait till one is faced with an actual situation before invoking “danger”, but at the same time, the test to determine the presence of “danger” in the form of an imminent or even a serious threat does not allow, to use the words of my colleague in Ketcheson,“for characterizing generic, hypothetical scenarios as ‘dangers’ when such issues are best considered through other problem-solving mechanisms in the Code.” As a result of what precedes, I conclude that there was no imminent threat to the appellant at the time of his refusal.

[134] Having answered the question of imminent threat in the negative, there remains to determine whether the same conditions could reasonably be expected to be a serious threat to the life or health of the appellant. 

[135] A serious threat is a reasonable expectation that the hazard, condition or activity, in this particular case the practice at Neptune, will cause serious injury or illness at some time in the future (days, weeks, months, in some cases years). Something that is not likely within a few minutes may be very likely if a longer time span is considered. The degree of harm is not minor; it is severe. In my opinion, a reasonable expectation extends beyond a mere possibility (a possibility being always the case), and includes a consideration of the probability the hazard will be in the presence of a person, the probability such a hazard will cause an event or exposure, and the probability the event or exposure will cause harm to a person.

[136] The evidence that served to draw the conclusion of no imminent threat is also relevant in the present consideration of a serious threat. In addition, I cannot avoid raising the fact that initially, the appellant's action was based, in part at least, on a misreading of the applicable regulations. Furthermore, I have found the evidence from Mr. Sotres compelling and I take into account the fact that no counter expertise was provided, except for a statement of disagreement by the appellant with the opinion of both Mr. Sotres and the ministerial delegate as to what constitutes a bulwark.

[137] I also look with a somewhat dubious eye at the reply from the appellant to the suggestion that it would be possible for the millwright, who is first to access a vessel on a still attached and suspended gangway, to examine at close range the condition of a handrail and stanchions on which the gangway is to be placed. The appellant’s claim that “this is not what we do” and questioning of the competence of the millwright to perform this task, where it is the operations foreman function to determine the proper placement of said gangway, seems to pay little heed to the fact that, while the Code establishes employer obligations relative to prevention, section 126 of the Code establishes parallel employee obligations to comply to employer instructions that relate to health and safety.

[138] The appellant has seemed to put much weight on the fact that in recent years, there have been two handrail collapses under the weight of a gangway. However, no details or particulars were provided as to the conditions under which these incidents occurred, and as such, such information carries little probative value. At the risk of repetition, one must also take into account the fact that the appellant was in no way involved in the operation of the placement of the gangways on these two vessels or, by extension, the assessment of the safety of such a placement. As I have stated above, the appellant has claimed very generally that the gangway placement practice at Neptune constitutes a danger. Yet, the assessment of whether there existed a serious threat at the time of refusal must be relative to the appellant.

[139] Having reviewed the totality of the evidence put before me, I have come to the conclusion that the appellant was not exposed to a serious threat to his life or health at the time of refusal.

[140] Having concluded in this manner, it is not necessary to proceed to the final element of the applicable test, whether the threat to life or health will exist before the hazard can be corrected or the activity altered.

[141] Based on all of the above, I find that the appellant was not exposed to a danger on the day he exercised his right to refuse work.

Decision

[142] For these reasons, I confirm the decision that a danger does not exist rendered by the ministerial delegate on February 8, 2018.

Jean-Pierre Aubre
Appeals Officer