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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