Archived - Decision: 95-013 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code,

Part II, of the directions issued by a safety officer

Decision no. 95-013

Applicant: Royal Air Maroc

Montreal, Quebec

Represented by: Mr. Edouard Beaudry and

Mr. François Duprat

Interested party: The Attorney General of Canada

The Department of Justice Canada

Represented by:Mr. Raymond Piché and

Ms. Nadine Perron

Mis-en-cause: Denis Caron

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

A hearing was held on June 21, 1995 at Montreal, Quebec

Intervention of the Attorney General of Canada

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

in this case. The Attorney General of Canada argued that since it was

possible that no party would intervene in support of the said

directions, he had all the necessary interest in arguing that the

impugned directions were consistent with Part II of the Canada Labour

Code (hereinafter the Code). Mr. Duprat confirmed that he did not

object to the Attorney General's intervening in this case. The

Attorney General of Canada was therefore authorized to intervene.

Background

The facts

On January 21, 1995, a work accident that caused the death of three

employees of an employer covered by the Code, namely, the airline

Canadian International Airlines Ltd. (hereinafter Canadian), occurred

at Mirabel International Airport.

This accident occurred when the three employees, who were standing in

two buckets some fifteen metres above the ground, and their fellow

workers were de-icing1 a Boeing 747-400 aircraft belonging to the

national airline Royal Air Maroc (hereinafter RAM). The accident

happened when the RAM aircraft began to move while de-icing was still

in progress. As a result, the aircraft's rear stabilizers struck the

hydraulic booms that were supporting the buckets, overturning the two

trucks performing the de-icing. The three employees of Canadian in the

buckets were thus thrown to the ground and died as a result of their

fall.

The investigation

On January 21,1995, Mr. Denis Caron, a safety officer, visited Mirabel

International Airport to conduct an investigation pursuant to the Code.

On January 22, 1995, during a meeting at Canadian, the safety officer

met with Mr. Mohamed Touhami, Station Manager, and Mr. A. Benmbarek,

Manager for Canada, both RAM employees. The safety officer reported

that he informed these two persons that he wanted to meet with the

pilot and co-pilot involved in the incident to question them. The two

pilots were never questioned because it was impossible for the safety

officer to meet with them since they had returned to Morocco.

The safety officer's investigation was therefore limited to the

analysis of the preliminary version of events as reported on February

13, 1995 by Mr. Gilbert Péloquin, the lawyer who normally represents

RAM. According to this version, "the captain and his co-pilot stated

that they received the radio message 'de-icing completed'. Following

this message, the captain tried twice to obtain confirmation that de-

icing has been completed, but received no response." According to the

safety officer, the captain then concluded that de-icing had in fact

been completed and requested permission to move "without receiving

oral, visual or other confirmation".

With regard to the airline itself, the safety officer noted that "Royal

Air Maroc has a contract with Canadian and that the two companies were

supposed to have memorandums of understanding on aircraft de-icing

procedures and that Royal Air Maroc did not provide supervision that

was adequate to ensure that the de-icing procedures applicable to it

are followed".

__________

1 For information purposes, de-icing is a procedure used to melt

frost, ice or snow that accumulates on an aircraft or to prevent one or

another of the aforementioned from forming or accumulating.

The directions

In this case,2 the safety officer issued numerous directions. Two of

these directions were brought to the attention of the Regional Safety

Officer by RAM.

The first direction (APPENDIX-A) was issued by the safety officer under

section 145(1) of the Code on March 15, 1995 to the captain, Mr.

Boubker Cherradi, an employee of RAM, for contravening section

126(1)(c) of the Code, which reads as follows:

126(1) 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;

The second direction (APPENDIX-B) was issued by the safety officer

pursuant to section 145(1) of the Code on March 15, 1995 to Royal Air

Maroc, an employer subject to the Code, for contravening section 124 of

the Code, which reads as follows:

124. Every employer shall ensure that the safety and health at

work of every person employed by the employer is protected.

Submission of Royal Air Maroc

The detailed written arguments of RAM were entered in the record. Mr.

Duprat presented a number of arguments in this case. Briefly stated,

they are as follows:

- The safety officer exceeded his jurisdiction by investigating this

accident because only the Board established pursuant to the

Canadian Transportation Accident Investigation and Safety Board Act

had jurisdiction to investigate an aviation occurrence.

- Royal Air Maroc, located in Montreal, Quebec, is not the employer

of Mr. Cherradi.

- The Code does not apply in the present case because the aircraft

was in operation when the accident occurred.

__________

2 A number of airlines and de-icing companies were issued directions

by the safety officer. The requests for review filed by the various

airlines and companies in question were heard separately.

- The safety and health of RAM's employees was never put at risk, as

the direction claims, because the accident victims are employees of

Canadian, and not of RAM.

- The pilot received oral confirmation that de-icing had been

completed.

Submission of the Attorney General of Canada

The detailed written submission of the Attorney General of Canada was

entered in the record. Mr. Piché refuted one by one RAM's arguments

and alleged that the pilot and the airline acted contrary to the Code

in this case. I will have to repeat some of Mr. Piché's arguments in

my analysis and I therefore do not intend to examine them in greater

detail for the time being.

Decision

It is clear that this case is very complex. This is due, in part, to

the many investigations conducted following the accident. For example,

there were investigations by the Royal Canadian Mounted Police, the

Canadian Transportation Accident Investigation and Safety Board

(hereinafter the TSB), the Coroner, Transport Canada Aviation, Human

Resources Development Canada, as well as internal investigations by the

various companies concerned. With the exception of these companies,

all the participants had a specific mandate under a statute that

authorized them to intervene. The same is true of the safety officer

who investigated pursuant to the Code in this case. Consequently, the

arguments made by Mr. Duprat raise very relevant questions that must be

answered.

Argument No. 1

The safety officer exceeded his jurisdiction by investigating this

accident because only the TSB established pursuant to the Canadian

Transportation Accident Investigation and Safety Board Act had

jurisdiction to investigate an aviation occurrence.

The fact that an aviation occurrence is investigated by the TSB does

not preclude the launching of another investigation authorized by a

different statute for a different purpose. It is clear on reading the

Canadian Transportation Accident Investigation and Safety Board Act

that the TSB has exclusive jurisdiction to investigate an aviation

occurrence in order to make findings as to their causes and

contributing factors. In my opinion, the TSB's monopoly of

investigation exists only within these parameters. As Mr. Piché pointed

out, section 127(2) of the Code implicitly recognizes the primacy of

the TSB as regards control of the site of an accident involving an

aircraft in order to enable the Board to investigate.

The memorandum of understanding signed between the Minister responsible

for Human Resources Development Canada (HRDC) and the TSB distinguishes

between the mandates of these two organizations and thus recognizes the

separate application of each under their respective enabling statutes.

The roles of the investigators may overlap in certain cases, but the

ultimate objective of the investigation that each conducts is very

different. The purpose of the Act governing the TSB is to advance

transportation safety, whereas the purpose of the Code is primarily the

protection of employees. Consequently, the safety officer conducts his

investigation in cooperation with the TSB if necessary, but his

investigation is not held up by this cooperation because the accident

that occurred is a work accident that involves employers and employees

who are subject to the Code.

A safety officer who is called upon to intervene following an aviation

occurrence must investigate, not to make findings as to its causes and

contributing factors, but to ensure that the safety and health of

employees are not endangered. If the safety officer discovers a

situation that is contrary to the Code and its Regulations, or sees

that a danger exists to employees in the workplace, the safety officer

must react by issuing appropriate directions to the employer or the

employees. The safety officer thus has a power that TSB investigators

do not have. To argue that a safety officer lacks jurisdiction to

investigate these situations would be tantamount to condoning the

unnecessary exposure of employees to risks, indeed dangers, until the

TSB has completed its investigation. In my opinion, this position is

untenable because it does not recognize the importance that Parliament

gave to the safety of employees in the workplace by declaring that the

Code applies, in this field, "notwithstanding any other Act of

Parliament or any regulations thereunder" {s. 123(1)}.

In short, the safety officer was authorized to investigate in this case

under the powers conferred on him by the Code. For all these reasons,

I therefore reject Mr. Duprat's first argument.

Arguments Nos. 2, 3 and 4

2. Royal Air Maroc, located in Montreal, Quebec, is not the employer

of Mr. Cherradi.

3. The Code does not apply in the present case because the aircraft

was in operation when the accident occurred.

4. The safety and health of RAM's employees were never put at risk,

as the direction alleges, because the accident victims are employees

of Canadian and not of RAM.

I have grouped these three arguments under the same heading because

they all deal with the jurisdiction of RAM. I cannot address any of

these arguments without determining whether the Code applies to RAM

and to the pilot and captain.

Mr. Duprat was very explicit in his arguments. He does not believe

that a foreign company like RAM, whose head office is in Morocco, can

be declared to be under federal jurisdiction and that a Canadian

statute can apply to it. Consequently, the question I must answer

first is this: can Canadian legislation governing labour relations and

working conditions apply to a foreign airline such as RAM? To answer

this question, I rely, first, on the decision of the Supreme Court of

Canada in Commission de la santé et de la sécurité du travail and

Ginette Bilodeau v. Bell Canada, [1988] 1 S.C.R. 749, a decision to

which Mr. Piché referred earlier, and, second, on international

practices relating to the observance of foreign labour legislation.

Decision of the Supreme Court of Canada

First, in order to understand clearly the importance of the

application of the Code in general, one must understand the

application of the individual parts of the Code. The Code comprises

three separate parts. The purpose of Part I of the Code is to

govern relations that exist between the various parties in their

work environment. Part II of the Code ensures that the working

conditions of employees do not endanger their safety and health.

Part III of the Code establishes minimum employment standards.

Taken together, the three parts of the Code constitute a legislative

entity governing the labour relations and working conditions of

works, undertakings or businesses under federal jurisdiction. This

statute has a direct effect on the management of the undertaking

because it sets out the criteria that a federal work, undertaking or

business must meet.

In the above-cited decision, the Court held that the provincial

legislation did not apply to Bell Canada, a federal undertaking.

The Court based this finding on the fact that Parliament had

exclusive jurisdiction in this case and that this jurisdiction

precludes the application to federal undertakings of provincial

statutes relating to labour relations and working conditions, since

such matters are an essential part of the very management and

operation of such undertakings, as with any commercial or industrial

undertaking.

Consequently, this decision establishes that no provincial, and by

extension, territorial or other statute dealing with labour

relations or working conditions can apply to a federal undertaking

because this statute would interfere directly with the management

and the working conditions of the undertaking, which the Court found

to be unacceptable. The corollary of this decision, in my opinion,

is that a federal statute, such as the Code, whose purpose is to

establish standards governing working conditions or labour

relations, cannot apply to a provincial, territorial and, a priori,

a foreign undertaking, for the same reason as the Court gave in the

above-cited decision.

International practices

As I noted above, the Code is a statute that governs the labour

relations and working conditions of federal undertakings. The Code

applies to employment, which means that it applies to all employees

and employers through a contract of employment that binds these

parties to one another. In certain sectors of activity, such as

shipping and navigation and air transportation, to name but two, the

Code imposes on the employer the obligation to protect their

employees, even during trips of short duration by these employees

abroad. In this regard, for example, section 128(5) of the Code

provides, in the case of a refusal to work, the following:

128(5) For the purposes of subsections (3) and (4),

(a) a ship is in operation from the time it casts off from

a wharf in any Canadian or foreign port until it is next

secured alongside a wharf in Canada; and

(b) an aircraft is in operation from the time it first

moves under its own power for the purpose of taking off from

any Canadian or foreign place of departure until it comes

to rest at the end of its flight to its first destination in

Canada.

It is clear from the wording of this provision that the Code applies

to Canadian employees under federal jurisdiction even when these

employees are required to work in a foreign country. Consequently,

Parliament decided to apply Canadian labour legislation to Canadian

employees working on foreign soil.

Because Canada extends its labour legislation to cover Canadians

working in foreign countries, it is reasonable, and even desirable,

that it agree to the application of Moroccan labour legislation to

Moroccan nationals working on Canadian soil for a Moroccan airline.

In fact, this is probably why, in deference to foreign legislation,

a country like Canada does not apply its labour legislation, in the

above-mentioned same sectors, to foreign employees of a foreign

employer. This is especially true in the shipping and navigation

sector where Canada defers to the application, aboard a foreign

ship, of the labour legislation and accompanying regulations in

force in the country of origin of this ship. In short, the Code

does not apply aboard foreign ships that are not of Canadian

registry.

Thus, were the Code to be applied to the airline RAM, whose head

office is in Morocco, the immediate effect would be to impose on a

foreign company the working conditions in effect in another country,

such as Canada. Obviously, this situation would be no more

acceptable to Morocco than it would be to Canada.

It would be unthinkable if, each time an aircraft landed on foreign

soil, it automatically became subject to the labour legislation of

the country where it landed. Were this the case, the minimum wage

of crew members would vary from country to country, as would noise

levels or lighting levels, the composition of the occupational

safety and health committee, payment of the salary of members of

these committees, etc. This would cause total confusion.

Moreover, in the present case, RAM's aircraft was in operation when the

accident occurred because the doors of the aircraft were closed, the

engines were running and the aircraft was moving under its own power

towards the apron in preparation for takeoff. In these circumstances,

the members of the crew who, in the final analysis, were all Moroccans

and not Canadians, are under the sole jurisdiction, in matters relating

to working conditions and labour relations, of the airline RAM whose

head office is in Morocco.

I am of the opinion that Part II of the Canada Labour Code does not

apply to Royal Air Maroc, whose head office is in Casablanca, Morocco.

In these circumstances, the Code likewise does not apply to the airline

pilot, Mr. Cherradi, because he is a Moroccan employee wholly under the

jurisdiction of RAM in Morocco.

Mention should be made here of the particular situation of RAM's ticket

office in Quebec and the relationship that apparently exits between

this office and the pilot of the aircraft, or its relationship with

RAM's head office located in Morocco. It was established to my

satisfaction that there is no connection, administrative or otherwise,

between the pilot and RAM's ticket office. The ticket office is a

separate operation. Its activities are essentially those of a travel

agent, as was confirmed by the Commission d'appel en matière de lésions

professionnelles du Québec for purposes of contributions to Quebec's

compensation plan, although this does not necessarily exclude it from

federal jurisdiction. However, the only link existing between the

ticket office, on the one hand, and RAM's pilot and other crew members

aboard the aircraft, on the other hand, is the fact that, at the time

of the accident, the aircraft was on Canadian soil. In my opinion,

this link is too ephemeral and tenuous to constitute a decisive

consideration in relation to labour legislation, of federal

jurisdiction over RAM, whose head office is in Morocco, and RAM's pilot

and captain.

In short, in light of all the foregoing, I conclude that the safety

officer should not have issued the directions that he issued in this

case to the airline RAM and to the pilot and captain of the RAM

aircraft.

I would add, however, that the fact that the Code does not apply in

this situation in no way precludes the operation of another statute,

such as the Canadian Transportation Accident Investigation and Safety

Board Act, to ensure that the necessary and appropriate

recommendations are formulated. If, under the Act concerning the TSB,

or any other relevant statute, such as the Aeronautics Act or the

Criminal Code, penalties must be imposed to guarantee safety in this

transportation sector, it will be up to the competent authorities to

take the necessary measures. Finally, this situation in no way

diminishes the authority of the safety officer to investigate under the

Code an aviation occurrence involving employees of a federal

undertaking.

For all the above-mentioned reasons, I hereby RESCIND the direction

issued by safety officer Denis Caron on March 15, 1995, pursuant to

section 145(1) of the Code, to the employer Royal Air Maroc, and I

hereby RESCIND the direction issued by safety officer Denis Caron on

March 15, 1995, pursuant to section 145(1) of the Code, to Royal Air

Maroc employee Mr. Boubker Cherradi, pilot and captain.

Mr. Duprat's final argument, namely, argument no. 5 mentioned earlier,

is therefore moot because the Regional Safety Officer no longer has the

necessary jurisdiction to consider the evidence.

Decision rendered on November 3, 1995.

Serge Cadieux

Regional Safety Officer

APPENDIX A

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYEE UNDER SECTION 145(1)

On January 21, 1995, the undersigned safety officer conducted an

investigation in the workplace used by Mr. Cherrabi (sic) Boubker, a

pilot employed by Royal Air Maroc, an employer which is subject to Part

II of the Canada Labour Code and which is located at 1001, boul. de

Maisonneuve ouest, bureau 440, Montréal (Québec) H3A 3C8, the said

workplace being operated by various de-icing companies and known by the

name De-icing Centre, located at Montreal International Airport,

Mirabel, Quebec.

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

of Part II of the Canada Labour Code has been contravened:

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

The pilot of B 747-400, by requesting permission to move and by

moving on the de-icing site, while neglecting to obtain verbal,

visual or other confirmation from the de-icing team that de-icing

had been completed, did not take the necessary steps to ensure his

own safety and health and the safety and health of any person likely

to be affected by his acts or omissions, with the result that

accidents occurred.

CONSEQUENTLY, you are HEREBY ORDERED, under section 145(1) of Part II

of the Canada Labour Code, to cease all contraventions forthwith.

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

Denis Caron

Safety Officer

#1521

TO: Mr. Cherrab Boubker Mr. Gilbert Poliquin

1001, boul. de Maisonneuve ouest Barrister and Solicitor

Bureau 440 60, rue St-Jacques, 6e étage

Montréal (Québec) Montréal (Québec)

H3A3C8 H2Y 1L5

APPENDIX B

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SECTION 145(1)

On January 21, 1995, the undersigned safety officer conducted an

investigation in the workplace used by Royal Air Maroc, an employer

subject to Part II of the Canada Labour Code and located at 1001,

boul. de Maisonneuve ouest, bureau 440, Montréal (Québec) H3A 3C8, the

said workplace being operated by different de-icing companies and known

by the name De-icing Centre located at Montreal International Airport,

Mirabel, Mirabel, Quebec.

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

of Part II of the Canada Labour Code has been contravened:

Section 124 of Part II of the Canada Labour Code, (Part II):

The employer, by allowing the pilot of B 747-400 to request

permission to move and to move after neglecting to obtain oral,

visual or other confirmation from the de-icing team that de-icing

had been completed, did not provide the supervision necessary to

ensure the safety and health of any person likely to be affected by

the acts or omissions of the pilot, Mr. Cherrabi (sic) Boubker, with

the result that accidents occurred.

CONSEQUENTLY, you are HEREBY ORDERED, under section 145(1) of Part II

of the Canada Labour Code, to cease all contraventions forthwith.

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

Denis Caron

Safety Officer

#1521

TO: Mr. Abderrazak Benmbarek Mr. Gilbert Poliquin

Manager for Canada Barrister and Solicitor

Royal Air Maroc60, rue Jacques

1001, boul. de Maisonneuve ouest 6e étage

Bureau 440Montréal (Québec)

Montréal (Québec) H2Y 1L5

H3A 3C8

SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER

Decision no.: 95-013

Applicant: Royal Air Maroc

Respondent: The Attorney General of Canada

KEY WORDS: Canadian Transportation Accident Investigation Safety

Board (TSB), investigation, occurrence, Royal Air Maroc

(RAM), aircraft in operation, foreign statutes

PROVISIONS: 124, 126(1)(c), 145(1)

Following an accident that took the life of three employees of Canadian

International Airlines Ltd. who were de-icing an aircraft belonging to

Royal Air Maroc (RAM), a safety officer concluded that the pilot of the

RAM aircraft left the de-icing centre before de-icing had been

completed. He issued a direction to RAM through the Montreal ticket

office and a direction to the pilot and captain of the aircraft in

question.

Upon review, the Regional Safety Officer determined that RAM, whose

head office is located in Morocco, was not under federal jurisdiction

and, furthermore, that in deference to foreign statutes, the Code

should not be applied to a foreign airline. For all these reasons, the

Regional Safety Officer RESCINDED the two directions.