Archived - Decision: 95-022 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

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Review under section 146 of the Canada Labour Code,

Part II, of a direction issued by a safety officer

Decision no. 95-022

Applicant: Mr. Pierre Smarlack

Canadian Airlines International Ltd.

Represented by: Mr. Harold C. Lehrer

Interested party: The Attorney General of Canada

The Department of Justice Canada

Represented by: Mr. Yves Laberge 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 January 8 and 29, 1996 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). Because I was satisfied that the Attorney

General of Canada had the necessary interest to intervene in this case,

I granted him leave to intervene.

Agreement

It was agreed that evidence presented in the case of Mr. Mike Milcik

would not be used in this case. Mr. Laberge explained that he intended

to file documents in support of his arguments even if these documents

were filed in Mr. Milcik's case and there would be independent proof in

this case.

Objections

Mr. Lehrer objected to the entering in evidence in this case of almost

all the documents filed by Mr. Laberge. Both parties presented

arguments concerning each objection. Essentially, Mr. Lehrer's

objection related to the fact that the safety officer had received the

documents or had participated in the examination of witnesses with the

knowledge that he could not make public the information obtained from

these sources. Moreover, Mr. Lehrer pointed out to us that he could not

cross-examine the persons who had made conflicting statements at either

the coroner's inquest held in this case, or during Canadian's internal

investigation.

I authorized Mr. Laberge to file a number of the contested documents

since they all had a direct bearing on the circumstances that led the

safety officer to issue the revised direction, either because the

safety officer had had access to these documents during his

investigation or because he participated in the various investigations

in an official capacity under the Canada Labour Code, Part II. In all

cases, I informed Mr. Lehrer that I would be very circumspect in

admitting these documents and that I would give no more weight than was

necessary to the statements contained in these documents, bearing in

mind that we could not examine the witnesses. For example, a key

witness in Mr. Mike Milcik's case (see unreported decision no. 95-018),

Mr. Paul Ritchie of Canadian, did not appear before the regional safety

officer to testify because he knew that the Code did not authorize the

regional safety officer to subpoena him.

There was also this whole question of the scope of the regional safety

officer's investigation, which was supposed to be an inquiry conducted

in a summary way, in accordance with subsection 146(3) of the Code, but

which in the end assumed the proportions of a judicial inquiry. In

these circumstances, the regional safety officer had an obligation to

strike a balance between these two notions while ensuring that the

review process was as equitable as possible without, however, leaning

too far in either direction.

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 Airlines International Ltd. (hereinafter Canadian), occurred

at Mirabel International Airport.

This accident occurred when three employees of Canadian and their

fellow workers Alain Giroux and Pierre Smarlack 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.

The safety officer reported that "on the evening of the accident, Alain

Giroux, a driver and station attendant for Canadian, was driving the

truck identified as truck #2, while Pierre Smarlack was driving the

other truck (#1) and was performing the duties of Lead Snowman for

Canadian".

The safety officer explained that "the vast majority of communications

are on different radio frequencies", namely:

- frequency 121.8 reserved for Ground Control;

- frequency 122.4 reserved for Apron Control;

- frequency 130.775 reserved for communications with Canadian;

- walkie-talkie radio communication (U.H.F.) to talk to Canadian's

operations;

- Hard-Wired communication between the driver of the truck and the

bucket operator who is in the bucket.

The safety officer pointed out that employees Giroux and Smarlack, and

the three deceased employees, were all Station Attendants. In Mr.

Smarlack's case, the safety officer reported that his duties, on the

evening of the accident, were Vehicle Driver and Lead Snowman.

According to the safety officer, "the job (of Mr. Smarlack) consists

generally in driving the truck, maintaining communications with the

Iceman2, with the person in the bucket of his truck, with truck #2,

with the crew of the aircraft and following the instructions of the

Bucket Operator".

__________

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.

2 Iceman means "de-icing co-ordinator". On the evening of the

accident, Mr Mike Milcik, an employee of Canadian, had been designated

Iceman for the de-icing of the RAM Boeing 747 aircraft. See unreported

decision No. 95-018 for further details.

The three deceased employees, one of whom was in training, were working

as Bucket Operators. According to the safety officer, "the job of

Bucket Operator consists in:

- maintaining communication with the driver of the truck by means of

the hard-wired system;

- using hand signals, giving the driver of the truck the

instructions necessary for his de-icing work".

The safety officer, in the course of his investigation, took the

following initiatives:

- he visited the de-icing centre three times;

- he attended the questioning of Mr. Smarlack by Canadian on January

25, 1995;

- he personally questioned Mr. Smarlack in the presence of various

persons on February 2, 1995;

- he gathered various documents, including:

- Canadian's de-icing procedure;

- the transcript of the questioning of Pierre Smarlack by

Canadian;

- the transcript of the questioning of Alain Giroux by Canadian;

and

- various statements that he drafted and that were signed by

Messrs. Giroux and Smarlack.

According to the safety officer, paragraph B(3) of section 3-7-9 of

Canadian's De-icing Procedures provides that the general de-icing rule

is that the de-icing of aircraft is done with the engines not running.

However, relying on Canadian's De-icing Procedures (paragraph 3-7-13),

the safety officer noted that, by way of exception to the general rule,

"the only two types of aircraft that can be de-iced while the engines

are running are Canadian's Boeing 737-200s and Airbus A320-200s".

Based on the foregoing, the safety officer made the following

observations concerning Mr. Pierre Smarlack:

- that he decided on his own initiative to ask the pilot of Royal

Air Maroc's B-747-400 to leave the engines of his aircraft running

during de-icing;

- that he stated that he had training on paper only;

- that he stated that he was supervising the bucket from inside the

truck, contrary to the De-icing Procedure set down by Canadian;

- that authorizing the pilot to leave the engines running interfered

with communication between the driver of the truck and the bucket

operator, and that in this case, the company's procedure requires

the use of a Guideman;

- that he was aware that his employer had not provided for any

procedures for de-icing B-747s with their engines running.

The direction

In conclusion, the safety officer was of the opinion that Mr. Smarlack

had contravened two provisions of the Code: paragraphs 126(1)(c) and

126(1)(d), both dealing with the duties of employees. He therefore

issued a direction to Mr. Smarlack to this effect. The direction

(APPENDIX-A) was issued by the safety officer on March 15, 1995,

pursuant to section 145(1) of the Code.

The safety officer explained in his report the reasons why he had

reached these conclusions:

"After noting all these facts and for all these reasons, I am of

the opinion that Pierre Smarlack contravened the Canada Labour

Code, more particularly section 126(1) of the said Code which

reads as follows:

126. (1) (safety and health) 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;

In fact, when Pierre Smarlack decided, in the circumstances, to de-

ice the Royal Air Maroc B-747-400 aircraft while the engines were

running and to tell the pilot that the de-icing would be done with

the engines running, he did not take all necessary and reasonable

precautions to ensure his own safety and health and the safety and

health of the other employees or of any person.

I am also of the opinion that Pierre Smarlack contravened section

126(1)(d) of the Canada Labour Code which reads as follows:

126. (1) (safety and health) While at work, every employee

shall

(...)

(d) comply with all instructions from the employer

concerning the safety and health of employees;

In fact, Pierre Smarlack's decision to authorize de-icing of the

Royal Air Maroc Boeing 747-400 aircraft while its engines were

running, when his employer's procedures stated that only Boeing 737-

200 and Airbus A320-200 aircraft could be de-iced with the engines

running did not comply with the instructions from his employer

concerning the safety and health of employees".

Submission on behalf of the employee

Mr. Lehrer's detailed arguments were entered in the record. Mr. Lehrer

made numerous submissions during the hearing of this case. The relevant

submissions are as follows.

Mr. Lehrer was of the opinion that the safety officer erred in his

reasoning when he concluded that de-icing a 747 with its engines

running was not permitted by the employer, and that Mr. Smarlack was

the one who made the decision to de-ice the Royal Air Marco 747 with

its engines running.

First, noted Mr. Lehrer, the safety officer relied on paragraph 3-7-13

of the document filed as Exhibit D-3S, Canadian's De-icing Procedures,

in concluding that the company limited de-icing while the engines were

running to two types of aircraft: the Boeing 737-200 and the Airbus

A320-200. This was a mistake on the safety officer's part because these

aircraft did not land at Mirabel, whereas other similar types of

aircraft did and they were de-iced at Mirabel with their engines

running. The safety officer should therefore have concluded that

Canadian's policy of de-icing aircraft with their engines running was

not limited solely to these two types of aircraft, whether or not they

were mentioned in the procedure.

Second, Mr. Lehrer pointed out to us that the safety officer also erred

in concluding that Mr. Smarlack was the one who decided to de-ice the

747 with its engines running because it was the pilot who made the

final decision. There was a certain chain of command in relations

between the ground crew and the crew of the aircraft that did not

permit a member of the ground crew to give the pilot an order. Without

exception, the pilot was always in charge of his aircraft and the pilot

always had the final say.

Mr. Lehrer drew our attention to the circular published by Transport

Canada (Aviation), dated August 22, 1994, entitled AIR CARRIER ADVISORY

CIRCULAR, that "is intended to encourage air carriers to allow their

aircraft to be de-iced/anti-iced with the main engines running, where

technically feasible". How could a government agency encourage de-icing

with the engines running and at the same time a safety officer find

that there had been a contravention of the Code because the employer

did not permit de-icing? According to Mr. Lehrer, Mr. Smarlack and Mr.

Milcik established that it was technically feasible to perform de-icing

with the engines running, Mr. Smarlack having done so three to six3

times previously.

The employer's testimony before the coroner, i.e., that de-icing of

747s with their engines running was not permitted by Canadian, was

completely false. The faxes filed by Mr. Lehrer, clearly showing that

the employer was testing the de-icing of a 747 with its engines

running, was conclusive proof to the contrary. The employer also

recognized in this internal correspondence that this was technically

feasible.

Mr. Lehrer admitted to us that he had a great deal of difficulty

understanding the logic of the safety officer who stated that it was

dangerous to perform de-icing with the engines running and who at the

same time rescinded a direction to this effect that he had issued to

the employer previously. If there was a danger, why allow the employer

to do it? Logically speaking, if a Boeing 737-220 or an Airbus A320-

200 aircraft could be de-iced with the engines running, then so too

could a Boeing 747-400 because there was very little difference between

these types of aircraft.

Finally, Mr. Lehrer strongly objected to the safety officer's comment

in his direction when he concluded, in connection with Mr. Smarlack's

decision, that leaving the engines running caused the accident. There

was no connection between the fact that the engines were running and

the accident. The pilot alone was responsible for the accident because

he put the aircraft in motion without confirming that de-icing had been

completed and without confirming that the aircraft had been cleared for

departure.

__________

3 During Mr. Smarklack's testimony and in his written statement to the

safety officer, the number of times reported is six to seven.

Submission of the Attorney General of Canada

The detailed submission of the Attorney General of Canada was entered

in the record. Mr. Laberge explained that, on the strength of the

documents filed, the employer had established procedures that permitted

de-icing, with the engines running, of certain limited types of

aircraft (paragraph 3-7-13, Canadian's De-icing Procedures, Exhibit D-

3S). However, there was a more general provision (page 19, paragraph 3

of the same above-mentioned procedures) which provided that normally,

de-icing should be done with the engines not running, except that,

under certain conditions, de-icing could be done with the engines

running. The safety officer relied on the employer's procedures when he

conducted his investigation.

The safety officer questioned Mr. Smarlack who made the statement to

him that he told the pilot to leave the engines running. This statement

by Mr. Smarlack was corroborated by a number of witnesses such as Ms.

Beaulieu, Ms. Campbell and even Mr. Milcik. Moreover, Mr. Laberge did

not accept Mr. Lehrer's argument that the pilot had the final say in

all matters.

With regard to the Transport Canada circular, Mr. Laberge explained

that it was intended first and foremost as an invitation to the

airlines to examine the possibility of de-icing aircraft with their

engines running, but not at any cost. The employer must establish the

procedures governing this type of operation. None of the procedures

filed stated that the employer authorized the de-icing of 747s with

their engines running. To date, all that the procedures said was that

de-icing with the engines running was not authorized in the case of

747s, but only in the case of 737s and 320s.

With regard to Mr. Smarlack's training to de-ice 747s with their

engines running, Mr. Laberge stated that during his questioning, Mr.

Smarlack replied that he had not had a training session on this type of

de-icing. Mr. Laberge did not accept the so-called training that Mr.

Smarlack had apparently received from Mr. Massie because even if Mr.

Massie was highly competent, he was not a trainer and, furthermore, Mr.

Smarlack was very evasive concerning the content of the training and of

the manuals, and one could not therefore tell what kind of training he

apparently received. In fact, there was a clear contradiction between

Mr. Smarlack's statement that he received training in de-icing 747s

with their engines running and his statement of February 2, 1995 that

he received no training.

According to Mr. Laberge, the facts showed that Mr. Smarlack had the

necessary authority to ask the pilot to shut down the engines of his

aircraft, a precaution which he did not take in this case. Mr. Smarlack

held a permit that authorized his movement about the airport apron, a

special traffic area that required security measures, especially when

working near a 747, whose four engines generated a lot of noise. There

was then a communication problem that was not taken into account.

Decision

The direction issued to Mr. Smarlack refers to a contravention of

paragraphs 126(1)(c) and (d) respectively of the Code. The safety

officer explained, in his investigation report, the reasons why he

identified the two contraventions, and this enabled the parties in

question to argue their respective cases before me.

The first question that I must decide in this case is whether Canadian

authorized de-icing with the engines running or if only certain members

of management had decided to conduct preliminary tests. In my opinion,

Canadian's policy in this regard was clear: de-icing with the engines

running was not performed on aircraft other than Boeing 737-200s and

Airbus A320-200s, regardless of whether these aircraft landed at

Mirabel. More specifically, the Boeing 747-400 was an aircraft on which

the employer was preparing to conduct tests but which presented special

problems. Be that as it may, it was not an aircraft the de-icing of

which was permitted with its engines running and for which a special

procedure had been provided. There had been no official authorization

of the de-icing of Boeing 747-400s with their engines running, which

leads me to believe that if tests were being conducted on this type of

aircraft, they were still at the preliminary stage. This situation

caused a great deal of confusion in de-icing operations and in the

assigning of responsibilities to the various persons involved in these

operations.

Mr. Smarlack told us that he performed de-icing on different types of

aircraft, including Boeing 747-400s, six or seven times. In my opinion,

Mr. Smarlack likely de-iced wide body aircraft similar to Boeing 747-

400s with their engines running. He may even have participated in tests

on Boeing 747-400s while their engines were running, although it was

never shown to me, with supporting evidence, that such was the case. I

note that during the questioning conducted by the safety officer, Mr.

Smarlack stated, in answer to question 15, that he de-iced 747s with

their engines running six or seven times. I also note that in reply to

question 23(A) that the safety officer asked him, i.e, "Under the work

procedures, is de-icing 747 aircraft while their engines are running

allowed?", Mr. Smarlack avoided directly answering the question as

asked. Instead, he replied, "Since I received training in de-icing with

the engines running, since then we've being doing it regardless of

whether it's a 747 or not." This statement seems to indicate that Mr.

Smarlack had in fact received training in de-icing Boeing 747-400s with

their engines running. Had he left it at that, I would be inclined to

believe Mr. Smarlack and to ignore the ambiguities in the questions and

answers even though his statements suggest that this type of operation

was conducted regularly at the de-icing centre, a situation which, to

my knowledge, was never officially acknowledged by the company.

However, if there is some ambiguity in all these statements, there is

none when, during his questioning of Mr. Smarlack, the safety officer

clearly asked him question 23(c), i.e., whether he had received

training in de-icing 747s while their engines were running. Mr.

Smarlack replied without hesitation "no", contrary to what he implied

at the hearing in this case. No matter how one interprets this question

and Mr. Smarlack's answer, I am not persuaded that he had received any

training in de-icing 747s with their engines running. The question is

very straightforward and unambiguous and does not require a complex

answer.

In short, what I conclude in this case is that Mr. Smarlack never

received any formal training in de-icing 747s while their engines were

running and he therefore lacked the necessary competence to perform

this operation. The "on-the-job" training that Mr. Smarlack claims to

have received from Mr. Massie cannot be recognized as being training

provided by the company because although Mr. Massie is very competent

at doing his job, he was not recognized as being a trainer.

On the evening of the accident, Mr. Smarlack served as Lead Snowman, a

job which I would describe as the on-site person in charge of the de-

icing crew. In this capacity, Mr. Smarlack was in direct contact with

the crew of the aircraft, the de-icing crew and the de-icing co-

ordinator (Iceman). His job consisted, among other things, in co-

ordinating on site the de-icing of both sides of the aircraft

simultaneously, effectively and safely. It follows from this

description that Mr. Smarlack had, in my opinion, the necessary

authority to ask the pilot to shut down the aircraft's engines, since

this procedure was the company's official policy. Moreover, Mr.

Smarlack himself established that he had this authority because he

asked the pilot, on his initial contact with him and other than to

determine what type of de-icing he wanted, to "shut down his engines".

The pilot wanted to comply, but informed Mr. Smarlack that his A.P.U.4

was shut down. According to Mr. Smarlack's duly signed statement of

February 2, 1995, he said, "I then told him to keep his engines

running; he confirmed to me that he would do that."

_____________

4 A.P.U. means Auxiliary Power Unit. The A.P.U. is the auxiliary engine

that must supply the power to keep the aircraft's main functions

operating while the main engines are shut down.

I must elaborate on this last point. Mr. Lehrer interprets Mr.

Smarlack's words as a suggestion or a question put to the pilot of the

aircraft, to which the pilot apparently replied yes and that in doing

so, it was the pilot who was authorizing de-icing with the engines

running. I do not accept this interpretation. It is true that the pilot

is responsible at all times for his aircraft and it goes without saying

that in leaving the de-icing centre before being informed that de-icing

was completed, the pilot bears a very heavy responsibility for the

consequences. It is also true that the pilot must assume some of the

responsibility by not objecting to the de-icing of his aircraft with

its engines running. However, that is not the matter at issue here.

When a pilot arrives at the de-icing centre, he entrusts to competent

employees responsibility for performing the various maintenance

operations, in this case de-icing, and does not have to question the

competence of these people. The pilot's responsibility is not at issue

here; what is at issue is Mr. Smarlack's responsibility. Mr. Smarlack

was not competent to ask the pilot to leave his engines running because

he had not received the training necessary to do so. Mr. Smarlack also

was not authorized to do so because it was contrary to Canadian's

policy to de-ice 747-400s while their engines were running. Moreover,

being the on-site person in charge of the de-icing operation, Mr.

Smarlack should never have allowed an employee in training to

participate in an operation for which there were no clearly defined

procedures.

I do not have to decide here who is responsible for the accident, but I

must say that, in my opinion, the performing of the de-icing while the

engines were running is not the cause per se of the accident. Moreover,

as Mr. Lehrer pointed out, Transport Canada was recommending that de-

icing be done with the engines running where technically feasible.

However, this operation should have been done only under very strict

supervision and using very strict safety procedures. But these

procedures had not yet been developed and, for all practical purposes,

there were no precautions specifically adapted to de-icing a Boeing

747-400 with its engines running. Mr. Smarlack did not therefore take

special safety precautions to de-ice a Boeing 747-400 with its engines

running because, beside the fact that he was not competent to decide to

take such precautions, there were no precautions.

With regard to the issuing of the direction to the employer under

paragraph 145(2)(a) of the Code, I share, in part, Mr. Lehrer's opinion

on this matter. When the safety officer detects a condition that

constitutes a danger, the Code requires him, under paragraph 145(2)(a),

to

(a) 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

(i) to take measures for guarding the source of danger, or

(ii) to protect any person from the danger;

This is what the safety officer did during his investigation. In my

opinion, the safety officer could have followed up his action in this

case by ensuring that the employer complied with the directions issued.

Naturally, the Code contains other provisions related to this

responsibility of the safety officer, but it does not allow him to

alter the content of the directions. I find it regrettable that the

safety officer issued a direction to Canadian and that following

certain contacts with representatives of the company, he rescinded for

all practical purposes the direction, an action which is the

responsibility of the regional safety officer under section 146 of the

Code. The safety officer had directed Canadian to do the following:

to adopt a safe work procedure whereby visual contact is maintained

with the pilot of the aircraft in order to confirm the start and

completion of de-icing work on the aircraft."

Later, the safety officer notified Canadian of the following:

"Given your full compliance with these directions, the

prohibition issued to you to stop de-icing any type of aircraft

while its engines are running is no longer in force."

One of the problems with this interference by the safety officer in the

regional safety officer's role is that it absolves, or at least appears

to absolve, the employer of its initial responsibility as regards the

circumstances of the accident, but maintains the employees'

responsibility without allowing them to exercise their rights and

express their viewpoint. In acting as he did, the safety officer left

only the employees to face possible charges, with the possibility of

multiple prosecutions, while taking the employer's side without any

further formalities. I do not agree with this action and I believe that

Parliament never intended that justice be dispensed so summarily.

When the accident occurred, the safety officer was informed that the

Canadian Transportation Accident Investigation and Safety Board

(hereinafter the TSB) would investigate in this case. We know that the

TSB has exclusive jurisdiction to investigate an aviation occurrence

in order to make findings as to their causes and contributing factors.

The safety officer has all the necessary authority to investigate in

this situation where employees under federal jurisdiction are involved

in the accident. However, I stated in Aéroports de Montréal,

unreported decision number 95-012, that where the TSB investigates,

[translation] "the safety officer's responsibility in these cases is

to determine whether the Code was contravened, and not to assign

responsibility for the accident". Consequently, the references that

the safety officer made in the direction, namely, the words "with the

result that accidents occurred", will be deleted from the direction.

The immediate effect of this amendment is to ensure that if Mr.

Smarlack is found to have contravened the Canada Labour Code, this

finding will not have the effect of establishing, in respect of him, a

direct causal link with the accident. This is the responsibility of

the TSB.

For all the above-described reasons, I am of the opinion that Mr.

Smarlack contravened paragraphs 126(1)(c) and (d) of the Canada Labour

Code, Part II. Bearing in mind the comment that I made earlier

concerning the assigning of responsibility for the accident, I HEREBY

VARY the direction issued on March 15, 1995, pursuant to subsection

145(1) of the Canada Labour Code, Part II, by safety officer Denis

Carron to Mr. Pierre Smarlack of Canadian Airlines International Ltd.,

by deleting from the direction the reference, under paragraph 126(1)(d)

of the Code, to the expression with the result that accidents

occurred" and by deleting from the direction, under paragraph

126(1)(c) of the Code, the reference to the expression "with the

result that work accidents occurred".

Decision rendered on February 27, 1996

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 operated by Canadian Airlines

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

Labour Code, and for whom Mr. Pierre Smarlack works as a station

attendant driver, which employer is located at 12600, Terminal A-1,

local 2134, Montreal International Airport, Mirabel, Quebec, J7N 1C9,

the said place being sometimes called the De-icing Centre.

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

Part II of the Canada Labour Code have been contravened:

Paragraph 126.(1)(d) of Part II of the Canada Labour Code (Part II)

The employee did not follow the employer's instructions concerning

de-icing, by deciding to de-ice a B 747-400 with its engines

running, with the result that accidents occurred.

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

The employee, by not following the instructions of his employer not

to de-ice a B 747-400 with its engines running, did not take all

reasonable and necessary precautions to ensure his own safety and

health and the safety and health of the other employees, with the

result that work 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. Pierre Smarlack

Station Attendant Driver

163, Domaine Cloutier

St-Colomban, Quebec

J0R 1N0

SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER

Decision no.: 95-022

Applicant: Mr. Pierre Smarlack, Lead Snowman

Interested party: The Attorney General of Canada

KEY WORDS: De-icing, Boeing 747-400, training, Lead Snowman,

A.P.U., TSB (Canadian Transportation Accident

Investigation and Safety Board)

PROVISIONS:

Code: 126(1)(c), 126(1)(d), 145(1)

SUMMARY:

Following a tragic accident in which three employees of Canadian

engaged in de-icing an aircraft belonging to the airline Royal Air

Maroc died, a safety officer issued a direction to the employee who was

in charge of the on-site de-icing operation. The Regional Safety

Officer (RSO) was essentially in agreement with the direction issued to

the employee. However, the RSO VARIED the direction by deleting from it the references to the words "with the result that accidents occurred".

The RSO determined that the safety officer's role, where an aviation occurrence is investigated by the TSB, is to determine whether the Code was contravened. The determination of the cause of the accident is, in these cases, the responsibility of the TSB.

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