Archived - Decision: 95-012 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

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Review under section 146 of the Canada Labour Code of directions given by the safety officer

Decision no. 95-012

Applicant: Aéroports de Montréal

Mirabel, Quebec

Represented by: Jean-François Longtin and

Nathalie Drouin

Interested party: Attorney General of Canada

Department of Justice of Canada

Represented by: Raymond Piché and Nadine Perron

Mis-en-cause: Denis Caron

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

Oral hearings were held on June 19 and 20 and July 23, 1995, in

Montreal, Quebec.

Intervention by the Attorney General of Canada

The Attorney General of Canada sought leave to intervene at the hearing

of this matter. The Attorney General of Canada argued that since it

was possible that no party would argue in support of these directions,

he had the full interest required to argue that the impugned directions

were in accordance with Part II of the Canada Labour Code (hereinafter

referred to as "the Code").

Although counsel for Aéroports de Montréal (hereinafter referred to as

"ADM") objected to this intervention on the basis that the reason

stated by the Attorney General is not valid, I granted the Attorney

General of Canada leave to intervene. I made this decision on the

ground that the decision I would be making in this case could in fact

have an impact on the occupational safety and health not only of the

employees of ADM, but also of employees engaged in de-icing airplanes.

Accordingly, I have determined that the Attorney General of Canada has

the interest asserted to intervene in respect of any undertaking under

federal jurisdiction to ensure that a direction given by a safety

officer is in fact consistent with the Code. Employees engaged in de-

icing airplanes are part of such an undertaking and, moreover, the

safety officer had established a connection between these employees and

the employees of ADM.

Background

The facts

On January 21, 1995, an accident on the job which caused the death of

three employees of an employer subject to the Code, the airline company

Canadian International Ltd. (hereinafter referred to as "Canadian"),

occurred at Mirabel International Airport.

This accident occurred as the three employees and their fellow workers

were de-icing1 a Boeing 474-400 aircraft belonging to the national

air transportation company Royal Air Maroc (hereinafter referred to as

"RAM"). The accident took place when the RAM aircraft started to move,

although the de-icing was not yet finished, so that the stabilizers at

the rear of the aircraft struck the booms supporting the baskets,

thereby overturning the two trucks being used for the de-icing. The

three employees of Canadian who were inside the baskets were then

thrown to the ground, resulting in their death.

The investigation

On the same day, January 21, 1995, Denis Caron, a safety officer, went

to Mirabel International Airport to conduct an investigation under the

Code.

In the course of his investigation, the safety officer made several

visits to a number of work sites, including the de-icing centre and the

Apron control tower. The officer also questioned Mr. Robert Tremblay,

the apron controller, an employee of ADM, in the presence of several

people. He took Mr. Tremblay's written statement and various ADM

documents, so that he could do a detailed analysis of the events and of

the various parties' responsibilities.

Upon completing his investigation, the safety officer concluded that

there was a dangerous situation at the de-icing centre which needed to

be corrected in order to avoid any other deaths occurring. On the

basis of his analysis of the responsibilities of ADM and of Mr.

Tremblay with respect to the de-icing centre, the safety officer

concluded that these parties shared in the responsibility for the

activities that went on at the de-icing centre.

__________

1 For purposes of clarity, de-icing is a procedure designed to melt

the frost, ice and snow that has accumulated on an aircraft or to

prevent it from forming or accumulating.

The responsibility assigned by the safety officer to ADM with respect

to the de-icing centre resulted from the fact that the centre is an

infrastructure belonging to ADM and made available to airline companies

so that they may have their aircraft de-iced. ADM was therefore

required to control the activities that took place there, through its

apron controller. The responsibility assigned by the safety officer to

the apron controller was to the effect that the controller was required

to ascertain from the pilot whether the de-icing was finished before

giving the pilot taxi clearance.

The directions

The safety officer issued a number of directions in this matter2.

Three of these directions were brought to the attention of the Regional

Safety Officer by ADM. Two of these three directions were the subject

of a request for a review made within the time allowed by the Code.

The third direction is a direction given under subsection 145(1) of the

Code to Mr.Robert Tremblay, the Mirabel Airport main apron traffic

controller, employed by ADM.

It was established at the hearing that the time allowed for requesting

a review of this third direction had expired, and that accordingly the

Regional Safety Officer did not have the jurisdiction required to hear

the request for a review of this direction. The fourteen days allowed

under subsection 146(1) of the Code is a mandatory time limit which the

Regional Safety Officer did not have the power to alter. Accordingly,

the request for a review of this last direction was dismissed.

However, the parties agreed that the review of the first two directions

would deal with the same facts, and that accordingly the decision of

the Regional Safety Officer concerning the first two directions will

have the same effect on the third direction, even though there was no

formal review in that case.

Accordingly, on February 4, 1995, the safety officer issued an initial

direction (SCHEDULE A) to ADM under paragraph 145(2)(a) of the Code, in

which he directed ADM to apply the said direction immediately.

__________

2 Several airline and de-icing companies received directions from the

safety officer. The applications for review filed by the various

companies involved were heard separately.

On March 15, 1995, the safety officer issued a second direction

(SCHEDULE B) to the employer3 under subsection 145(1) in which the

safety officer stated the opinion that ADM had contravened section 124

of the Code.

ADM requested a review of both directions referred to above, and in

addition requested a review of the third direction (SCHEDULE C), which

had been given to Mr. Tremblay on March 15, 1995; as we now know, that

request was dismissed by the Regional Safety Officer on the ground that

it was untimely.

Submission of ADM

The detailed argument of ADM was entered in the record.

Preliminary Argument

Mr. Longtin first submitted a preliminary argument, contending that the

safety officer had no jurisdiction to issue these directions.

According to Mr. Longtin, the safety officer did not have the power to

issue directions to ADM in this matter, for one good reason: ADM had no

employees working at the de-icing centre, and it had no authority over

the operations that go on there. This argument alone is sufficient,

according to Mr. Longtin, for the directions to be rescinded.

Mr. Longtin continued his argument by dealing individually with each of

the two directions (SCHEDULE A and SCHEDULE B) issued to the employer.

__________

3 In this case, the title of the original section (see SCHEDULE B)

issued by the safety officer read as follows: [TRANSLATION] DIRECTION

TO EMPLOYEE UNDER SUBSECTION 145(1). The parties agreed that the

reference to "employee" in that title was inaccurate, that it resulted

from a typing error and that in reality the direction as it was framed

was addressed to the employer and not to the employee in this specific

case. I have corrected the direction accordingly. For purposes of

clarity, I have decided to reproduce only the corrected version of the

direction in the text of the decision.

Direction under paragraph 145(2)(a) of the Code

On the question of the direction issued to the employer under paragraph

145(2)(a) of the Code, Mr. Longtin submitted that there was no

dangerous situation at the de-icing centre on February 2, 1995. The

officer never described the dangerous situation alleged, but specified

what measures the employer was required to take to prevent other

accidents from occurring, which the Act does not authorize him to do.

Mr. Longtin pointed out that the safety officer took two points into

account in issuing his direction under paragraph 145(2)(a) of the Code:

- The fact that the Royal Air Maroc aircraft was de-iced, with the

motors running, by employees of Canadian; and

- The visibility of the de-icing centre to the apron controller.

For the purposes of de-icing the airplane, the de-icing centre was

under the control of Canadian, and not of ADM. The de-icing of the

airplane with the motors running was done by employees of Canadian, in

contravention of Canadian's guidelines.

On the second point, Mr. Longtin explained that the role of the apron

controller is to direct traffic between two points, and that the

primary tool used in his work is radio communication. On the day of

the accident, communication between the apron controller and the pilot

took place by radio communication, as it was supposed to be done.

In addition, the apron controller should not assume the role of the

airplane pilot, who must ensure that all operations are finished and

that he is "Ready to Taxi"4. The safety officer directed ADM to take

a specific measure to avoid another accident from occurring.

[TRANSLATION] "This measure, which consists in directing the apron

controller to ask the pilot whether he has received his visual signal

before giving him taxi clearance is inappropriate and irregular and is

certainly not such as would prevent other accidents; ... ." Mr.

Longtin said that "it is the responsibility of the pilot in command on

the aircraft, with his ground crew, to ascertain that the flight

preparation operations at the parking space are finished and that the

airplane is free to move before stating that he is ready to taxi. The

de-icing centre is a parking space just like any other parking space on

the apron (gate).

__________

4 In aeronautics, the expression "Ready to Taxi" means that the pilot

and flight captain of an aircraft has ascertained that all maintenance

and other operations on the aircraft have been completed and that the

aircraft is free to move. When the pilot has done this and confirms to

the apron traffic controller that his or her aircraft is ready to taxi,

the controller transmits to the pilot the route to follow on the apron

and the priority assigned to him or her, by radio.

When the aircraft is parked, either at a gate or at the de-icing

centre, it is under the complete authority of the pilot in command and

his ground crew. It is up to these two parties to establish a

communication system between themselves (signaller, radio

communications, intercom) so that the ground crew can transmit

information to the pilot to advise that the maintenance operation is

finished and the aircraft is free to move. ADM can in no way step in

or interfere in the internal procedures of the companies that supply

maintenance and mechanical services; ... ."

For all these reasons, the direction under paragraph 145(2)(a) of the

Code should therefore be rescinded.

Direction under subsection 145(1) of the Code

Mr. Longtin submitted that [TRANSLATION] "[i]n his direction, the

safety officer stated that he was of the opinion that ADM has

contravened section 124 of Part II of the Code, which provides:

Every employer shall ensure that the safety and health at work of

every person employed by the employer is protected.

although no employee of ADM suffered any accident on the job.

When the safety officer, Denis Caron, was examined at the hearing as to

the measures that ADM was required take in order to cease contravening

the direction issued under subsection 145(1), he stated that he can

only find that there has been a contravention, and cannot tell the

employer what measures to take in order to comply (e.g. flare and

caustic). Mr. Caron then stated that he found that the employee had

contravened paragraph 126(1)(c) of the Code (relating to the duties of

employees). Paragraph 126(1)(c) provides:

While at work, every employee shall

(c) take all reasonable and necessary precautions to ensure the

safety and health of the employee, the other employees and any

person likely to be affected by the employee's acts or omissions;

Accordingly, with respect to the contravention of paragraph 126(1)(c)

of the Code, the employee must have committed acts or omissions that

could jeopardize the health and safety of anyone likely to be affected.

The evidence established, beyond a doubt, that the facts related by

Denis Caron in the direction to the employer under subsection 145(1)

are false since they are not consistent with reality. Analysis of

the various frequency transcripts show that Mr. Tremblay

[TRANSLATION]

"never communicated with the Canadian Airline de-icing crew to ask

one of the crew members to call back when the de-icing of the Royal Air

Maroc Boeing 747-400 was finished and never awaited such a call or

confirmation. In fact, it is not up to the apron traffic controller,

in the performance of his duties, to verify, either with the de-icing

crew or with the pilot, whether de-icing is finished. Robert Tremblay

did not have to ask the pilot whether de-icing was finished, since the

pilot in command gave him that information by stating that he was ready

to taxi".

Submission of the Attorney General of Canada

The Attorney General of Canada declined to present arguments to the

Regional Safety Officer in support of the directions for which the

employer requested a review.

Decision

It is important at this stage to point out that the silence of the

Attorney General of Canada on the submission by ADM is a tacit

recognition of the validity of the submission by ADM. At least, this

is the conclusion I draw from it.

With respect to the preliminary argument by ADM, I agree completely

with Mr. Longtin's argument that ADM has no employees either at the de-

icing centre or at the parking space for aircraft on the main traffic

area, the apron. It is inconceivable that as experienced a safety

officer as Mr. Caron could have assigned responsibility to ADM under

the Canada Labour Code, an Act which applies only to employment in a

work place under federal jurisdiction.

Moreover, subsection 123(1) of the Code unequivocally specifies the

scope of the Code:

123(1) Notwithstanding any other Act of Parliament or any

regulations thereunder, this Part applies to and in respect of

employment (emphasis mine)

The expression "to and in respect of employment" means that there must

be an employer-employee relationship in order for the Act to apply.

The wording of the two directions issued by the safety officer clearly

shows that the directions apply to the employer, and this implies that

the employer contravened a provision of the Code by putting the safety

and health of its employees at risk. It was established to my

satisfaction and beyond a doubt that ADM has no employees working at

the de-icing centre or in any other parking space. In addition, ADM

has no control over the activities that go on there, since it is not

involved in any way in the aircraft de-icing operations, that activity

being entirely the responsibility of certain airline companies and

companies that specialize in it.

I have intentionally reproduced in this document certain parts of Mr.

Longtin's submission concerning the two directions, in order to make

the reader aware of the complexity of operating an airport like

Mirabel. These passages are useful in that they not only show us the

position of the employer with respect to the directions it is

contesting, but also explain, clearly and precisely, the procedure by

which traffic is controlled in an airport and the specific

responsibilities assigned by Parliament to the various parties involved

in this field, under the Airport Traffic Regulations. Although these

regulations were submitted by the safety officer in his initial report

to the Regional Safety Officer, it is now obvious that the officer did

not understand the meaning and significance of the responsibilities

assigned by Parliament to ADM and to the apron controller, in this case

Mr. Tremblay.

Mr. Tremblay in fact has no responsibility in respect of the de-icing

centre other than to obtain confirmation from the pilot in command of

the aircraft that he is ready to taxi on the apron. It is not the job

of the apron controller to ascertain from the de-icing team or the

pilot that all maintenance operations are finished and that the

aircraft is free to move and ready to taxi. This responsibility lies

with the pilot in command of the aircraft, who in fact assumed this

responsibility when he stated "Ready to Taxi".

The role of the apron controller was very clearly described by Mr.

Longtin. Suffice it to say that the apron controller must ensure that

traffic on the apron is completely safe. In order to do this, he must

ensure that any aircraft that states that it is ready to taxi waits

until he informs it that the apron is clear and it may proceed. If

there is traffic on the apron or if other airplanes have requested taxi

clearance, the apron controller informs the pilot accordingly and

informs him or her of his taxiing priority. The role of the apron

controller is to control traffic on the apron. Accordingly, the

direction (SCHEDULE C) issued to Mr. Tremblay is unfounded.

The safety and health of Mr. Tremblay, as an employee of ADM, or of any

other employee of ADM, was obviously never put at risk. Accordingly,

ADM cannot be held responsible for any contravention of the Code, as an

employer, for failing to protect the safety and health of its

employees.

With respect to the allegation by the safety officer that there was a

danger at the de-icing centre, that danger, if danger there was that

evening, was not described by the safety officer. Danger is defined in

subsection 122(1) of the Code as follows:

"danger" means any hazard or condition that could reasonably be

expected to cause injury or illness to a person exposed thereto

before the hazard or condition can be corrected; (emphasis mine)

The power of the safety officer to remedy a danger is delineated in

paragraph 145(2)(a) of the Code, which provides:

145(2) Where a safety officer considers that the use or operation of

a machine or thing or a condition in any place constitutes a danger

to an employee while at work,

(a) the safety officer shall notify the employer of the danger

and issue directions in writing to the employer directing the

employer immediately or within such period of time as the

officer specifies

It is clear from the foregoing that the danger that exists must be

described to the employer. In addition, it must be a danger that can

be corrected, it must affect the safety and health of an employee, and

it is the employer of that employee which must make the correction.

These conditions are not met in the situation that concerns us here.

ADM has no control over the activities that go on at the de-icing

centre since that control lies with various companies that do the de-

icing. ADM therefore cannot correct the situation since it has no

employees working at the de-icing centre.

I must make one comment concerning the conclusion reached by the safety

officer in the direction (SCHEDULE B) given under subsection 145(1) of

the Code. In that direction, the officer concludes:

[TRANSLATION]

... the employee therefore did not take all reasonable and necessary

precautions to ensure the safety and health of any person likely to

be affected by his acts or omissions, so that accidents occurred.

(Emphasis mine)

The conclusion reached by the safety officer has serious consequences

for ADM, since it assigns responsibility for the accident to ADM. It

exposes ADM to civil actions, although the authorities responsible for

determining the causes of the accident had not yet made their finding.

In this sort of situation, there is nothing to prevent the safety

officer from conducting an investigation under the Code. However, in

such cases the safety officer's responsibility is to determine whether

there has been a contravention of the Code, and not to assign

responsibility for the accident.

__________

* Translator's note: this passage is taken from Schedule C; the wording

used in Schedule B is slightly different.

The comment "so that accidents occurred" was a gratuitous comment by

the safety officer, since at the hearing the agent demonstrated that he

was a layperson in the field of aeronautics. The safety officer knew

perfectly well that the Canadian Transportation Accident Investigation

and Safety Board was investigating this matter, and that under the

Canadian Transportation Accident Investigation and Safety Board Act

that Board had jurisdiction to determine the causes of the accident.

The safety officer should have proceeded in cooperation with that

Board's investigators, which he did not do.

In short, ADM played no role in this matter and should never have been

identified by the safety officer as one of the parties responsible for

the accident. For all of the foregoing reasons, I HEREBY RESCIND the

direction (SCHEDULE A) issued under paragraph 145(2)(a) of the Code on

February 4, 1995 by the safety officer, Denis Caron, to Aéroports de

Montréal; and I HEREBY RESCIND the direction (SCHEDULE B) issued under

subsection 145(1) of the Code on March 15, 1995 by the safety officer,

Denis Caron, to Aéroports de Montréal.

In addition, in order that there be no misunderstanding on this point,

and for the reasons listed at the hearing and at the outset of this

decision, the request for a review of the direction (SCHEDULE C) issued

under subsection 145(1) of the Code by the safety officer, Denis Caron,

to Robert Tremblay, an employee of Aéroports de Montréal is untimely

and the said REQUEST IS DISMISSED.

Decision dated September 6, 1995

[signed]

Serge Cadieux

Regional Safety Officer

SCHEDULE A

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYER UNDER PARAGRAPH 145(2)(a)

On February 2, 1995, the undersigned safety officer conducted an

investigation at the work place operated by Aéroports de Montréal, an

employer subject to Part II of the Canada Labour Code, situated at

12655 rue Commerce A-4, 7th floor, Mirabel, Quebec, which work place is

sometimes known as the De-icing Centre of Montreal International

Airport, Mirabel.

The said safety officer directs you, until further direction, to ensure

that the apron controller confirms with a pilot who wishes to leave the

de-icing centre that the pilot has obtained the visual signal informing

him that the de-icing team has finished, before giving taxi clearance.

Accordingly, you are HEREBY DIRECTED, under paragraph 145(2)(a) of Part

II of the Canada Labour Code, to apply this direction immediately.

Dated at Montreal, this 4th day of February 1995.

SCHEDULE B

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYER5 UNDER PARAGRAPH 145(2)(a)

On January 21 and February 2, 1995, the undersigned safety officer

conducted an investigation at the work place operated by Montreal

International Airport, an employer subject to Part II of the Canada

Labour Code, situated at 12655 rue Commerce A-4, 7th floor, Mirabel,

Quebec J7N 1E1, which work places are sometimes known as the De-icing

Centre and APRON CONTROL.

The said safety officer is of the opinion that the following provision

of Part II of the Canada Labour Code is being contravened:

Section 124 of Part II of the Canada Labour Code (Part II).

By permitting Mr. Robert Tremblay, the "apron controller", to give

the pilot of the R.A.M. B 747-700 taxi clearance when Mr. Tremblay

had received no response to two calls asking the team that was de-

icing to confirm that the de-icing was finished, and moreover, the

controller, Mr. Tremblay, did not ascertain from the pilot whether

the de-icing was finished, the employer therefore did not exercise

the necessary supervision to ensure the safety and health of any

person affected by Mr. Tremblay's acts or omissions, so that

accidents occurred.

ACCORDINGLY, you are HEREBY DIRECTED under subsection 145(1) of Part II

of the Canada Labour Code to cease all contraventions immediately.

Dated at LaSalle, this 15th day of March 1995.

__________

5 See footnote 3 supra.

SCHEDULE C

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYEE UNDER PARAGRAPH 145(2)(a)

On January 31, 1995, the undersigned safety officer conducted an

investigation at the work place which is under the authority of

Montreal International Airport, Mirabel, an employer subject to Part II

of the Canada Labour Code, and for which Robert Tremblay works as an

apron controller. This company is situated at 12655 rue Commerce A-4,

7th floor, Mirabel, Quebec J7N 1E1, which work places are sometimes

known as the De-icing Centre and APRON CONTROL.

The said safety officer is of the opinion that the following provision

of Part II of the Canada Labour Code is being contravened:

Paragraph 126(1)(c) of Part II of the Canada Labour Code (Part II):

The employee communicated twice by radio with the team that was de-

icing the R.A.M. B 747-700. The first time, he reached the team and

asked them to call back when the de-icing was finished. The second

time, he tried to reach the same de-icing team to ask them to

confirm that the de-icing was finished; he was unsuccessful. Having

received no confirmation for either of these calls, and moreover, by

giving the pilot taxi clearance without ascertaining from the pilot

whether the de-icing was finished, the employee therefore did not

take all reasonable and necessary precautions to ensure the safety

and health of any person likely to be affected by his acts or

omissions, so that accidents occurred.

ACCORDINGLY, you are HEREBY DIRECTED under subsection 145(1) of Part II

of the Canada Labour Code to cease all contraventions immediately.

Dated at LaSalle, this 15th day of March 1995.

SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER

Decision no: 95-012

Applicant: Aéroport de Montréal

Provisions: Code 145(1), 145(2)(a), 124, 126(1)(c)

Key Words: De-icing, apron controller, pilot, ready to taxi, boom,

basket, de-icing truck, employment, TSB (Canadian

Transportation Accident Investigation and Safety Board)

As a result of an accident which occurred during the de-icing of a

Royal Air Maroc (RAM) airplane at the de-icing centre of Mirabel

International Airport in which three employees of Canadian

International Ltd. (Canadian) met a tragic end, the safety officer

issued two directions to Aéroports de Montréal (ADM) and one direction

to the traffic controller at the main apron of the airport, an employee

of Aéroports de Montréal.

With respect to the two directions issued to ADM, one under paragraph

145(2)(a) of the Code and the other under subsection 145(1) of the

Code, the Regional Safety Officer determined that ADM should not have

been targeted by the safety officer as a party which played a role in

the accident because ADM has no control over the activities that go on

there. In addition, the officer had not described the alleged danger

in the direction. The Regional Safety Officer also determined that the

health and safety of the employees of ADM was never put at risk, and

that since the Code applies to employment, there had to be such an

employer-employee relationship. The Regional Safety Officer

rescinded the two directions to ADM.

The direction issued to the employee required that he confirm with the

pilot of the airplane that de-icing was finished before giving the

pilot taxi clearance on the apron. The direction [sic] was out of

time and the request was dismissed. However, in view of the facts

discussed on the review of the two directions issued to ADM, it was

established that the role of the apron controller was solely to ensure

that any traffic on the apron is completely safe. It is not the role

of the apron controller to ensure that the pilot was "Ready to Taxi",

an expression that was described as being the responsibility of the

pilot, to ensure that all maintenance and other operations were

finished and that the aircraft was free to move and accordingly ready

to taxi.

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