Archived - Decision: 96-001 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II of a

direction issued by a safety officer

Decision No.: 96-001

Applicant: Canadian Auto Workers

Rail Division, Local 100

Represented by: John Merritt

Respondent: C.N. North America

McGregor Yard

Sarnia, Ontario

Represented by: Kenneth R. Peel

Mis en cause: R.D. (Bob) Fortner

Safety officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

An oral hearing was held on January 18, 1996 in Toronto, Ontario. It

was agreed at the hearing that the issue dealing with overtime was

outside the jurisdiction of the Regional Safety Officer and would be

dealt with under Part III of the Canada Labour Code. The issue of

alertness due to excessive hours of work was not an issue considered by

the safety officer during his investigation and no direction was given

on this issue.

Background

On May 26, 1995, Mr. Crowe, a senior transportation clerk with CN, was

seriously injured by a CN vehicle. The accident occurred around 4:00

o'clock, p.m. in the McGregor Yard. Mr. Crowe had finished his

sequence check of the cars located on track A8 and was returning to his

vehicle that was parked along a service road adjacent to the tracks.

When the accident occurred, Mr. Crowe was bent over in front of his

vehicle, with headlights on and, apparently, trying to read something.

The driver of the oncoming vehicle reported that Mr. Crowe appeared "20

to 25 feet" in front of his vehicle and that he was unable to avoid the

collision at that point. It is unclear why Mr. Crowe was in the

oncoming lane.

The speed of the vehicle involved in the collision was established at

being approximately 10 to 15 mph.. The police investigation confirmed

that, at the speed at which the oncoming vehicle was travelling and the

distance at which Mr. Crowe was distinguished, the accident was

unavoidable regardless of the condition of the brakes on the vehicle

involved in the accident.

The results of the investigation carried out by the safety officer in

this case revealed that three factors contributed to the accident. They

are:

1. Mr. Crowe was dressed in dark clothing, a black/grey jacket and

dark pants, making him very difficult to see in low light

conditions. The test carried out on lighting conditions and

visibility at the time of the incident revealed that "a person,

dressed in dark clothing, is not readily visible when in an area

between two vehicles approaching each other with headlights

illuminated, until the distance between the vehicles becomes very

minimal."

2. Mr. Crowe was not wearing any personal protective equipment i.e.

head protection and foot protection.

3. Motor vehicle #078446 which was in contact with Mr. Crowe was

found to be in an unsafe condition with deficiencies noted with its

brake system, steering, tires.

In response to these findings, the safety officer issued a direction

(APPENDIX-1) to C.N. North America addressing the use of:

a) high visibility clothing;

b) personal protective equipment; and

c) safe vehicles and equipment.

Submission for the employees

Mr. Merritt explained at the hearing that he had only requested a

review of items number 2 and 3 of the direction and that only those two

items were to be reviewed.

Mr. Merritt stated that, in respect of the second item, the technical

and legal format of the direction was unacceptable because the safety

officer failed to identify the provision of the Canada Occupational

Safety and Health Regulations (the Regulations) that had been

contravened, thus questioning whether the direction was enforceable.

Mr. Merritt is asking the Regional Safety Officer to vary that item of

the direction by including a reference to paragraph 125(s) of the

Canada Labour Code, Part II (the Code) and identifying section 12.15 of

the Regulations as the appropriate provision to be complied with.

In respect of the third item, Mr. Merritt recognizes the safety

officer's "dilemma that he was faced with by trying to rely on a COSH

Reg. that would not appropriately address the deplorable condition of

the road vehicle being relied on by employees at the time of the

incident." Indeed, the police investigation identified a serious

deficiency with the braking system of the contact vehicle in that the

rear brakes were effectively not functioning at the time of the

accident. Mr. Merritt is suggesting that the Regional Safety Officer

vary the direction by referencing section 124 of the Code to ensure the

employer meets the provincial standards on its vehicles.

Submission for the employer

In respect of the second item of the direction, Mr. Peel notes that

while employees, including Mr. Crowe, are well aware of the employer's

policies in regards to the use of personal protective equipment, he has

no explanation as to why Mr. Crowe was not wearing the protective

equipment, i.e. the high visibility vest and foot protection, on that

day. Nonetheless, steps were taken following the issuance of the

direction to make all employees working at the carload centre aware of

their responsibility to wear the high visibility vests.

Mr. Peel feels that, in respect of the third item of the direction,

"the provision of the Code which is referred to is probably the most

appropriate one, i.e. paragraph 125(i). Furthermore, it is suspected

that the maintenance of the vehicle was a concealed fraud which is

currently under investigation by the police. Nonetheless, it has been

shown that, while the brakes were heavily worn and not repaired as had

been presented, this would not have prevented the accident. That

assertion was corroborated by the police investigation.

Decision

There are two issues to be decided in this case which correspond to

item number 2 and item number 3 of the direction. I will analyze each

issue separately. It should be noted that the first item of the

direction is not under review. However, this does not mean that I

agree with the safety officer that this item of the direction is

correctly formulated.

1. The first issue to be decided is the second item of the direction

which reads as follows:

"Paragraph 125(v) of the Canada Labour Code, Part II.

The employer shall ensure that every person granted access to the

workplace by the employer is familiar with and uses, in the

prescribed circumstances and manner, all prescribed safety

materials, equipment, devices and clothing."

Mr. Merritt is concerned with the format of this item for two reasons.

Firstly, it fails to identify the appropriate provision of the

Regulations as explained above. Secondly, in Mr. Merritt's opinion,

the real issue in this instance should have been making the employees

aware of the protective equipment that must be used at work and giving

them the necessary training to ensure their protection. Therefore, the

safety officer should have referenced paragraph 125(s) of the Code and

identified section 12.15 of the Regulations to address that concern.

I must admit that, initially, I was somewhat confused with the wording

of this item of the direction. The safety officer referenced paragraph

125(v) of the Code but rather than describing the infraction, as he did

for the first item of the direction, he merely repeated the wording of

paragraph 125(v) of the Code, thus making that item redundant as

formulated. However, at the hearing the safety officer explained that

he observed employees not wearing any personal protective equipment.

He further explained that since the company had clear policies in

regards to personal protective equipment, he issued a direction to the

company to ensure that their policies are being enforced.

Mr. Peel is not objecting to the direction as formulated. In fact, Mr.

Peel submitted that in response to the direction, the company issued a

bulletin to all employees of the carload centre re-emphasizing the need

to wear high visibility vests. The safety officer confirmed that,

following his investigation, the area was posted with signs with

regards to head and foot protection and that the safety and heath

policies and procedures had been upgraded with the employees.

In my opinion, all the safety officer needed to do to ensure compliance

in this case was to issue a direction to the company, which he did, and

identify the provisions of the Code and the Regulations which, in his

opinion, were being contravened. The safety officer omitted to

identify those latter provisions with the result that employee

representatives felt aggrieved by the direction.

As Mr. Merritt explained in his submission, by using the word prescribe

in the enabling legislation, which is the Code in this instance, the

legislator intended to impose upon the employer a specific duty or, at

least, ensure that it had the necessary authority to do so in the

future. Mr. Merritt concluded that, for this item of the direction to

have any meaning, a specific provision of the Regulations must be

identified. I fully agree with Mr. Merritt's conclusion.

The proper provisions of the Regulations addressing protective

headwear, protective footwear and high visibility vests are as follow:

protective headwear - section 12.4 of the Regulations

protective footwear - section 12.5 of the Regulations

high visibility vests - section 12.13 of the Regulations

In my opinion, the issue of ensuring compliance with paragraph 125(v)

of the Code respecting the use of high visibility vests has not been

addressed by the first item of the direction. Therefore, I will

reference section 12.13 of the Regulations to ensure the employer

complies with the law by enforcing its own policies in this respect.

Before closing the revision of this item of the direction, I must

address Mr. Merritt's request to have the second item of the direction

varied by referencing paragraph 125(s) of the Code and identifying

section 12.15 of the Regulations on the basis that employees were not

given adequate information and training in respect of personal

protective equipment. While Mr. Merritt's concern may be very

legitimate, it is an issue which was not addressed by the safety

officer during his investigation and for which no evidence has been

gathered or submitted. If anything, the safety officer was of the

opinion that CN had adequate policies in place in this respect and that

he was satisfied that training was not an issue in this case. I do not

believe I can address this particular issue any further.

For all the above reasons, I HEREBY VARY item number two of the

direction by replacing the following reference and description i.e.

2. Paragraph 125(v) of the Canada Labour Code, Part II.

The employer shall ensure that every person granted access to the

workplace by the employer is familiar with and uses, in the

prescribed circumstances and manner, all prescribed safety

materials, equipment, devices and clothing.

with the following references and description, i.e.

2. Paragraphs 125(v) of the Canada Labour Code, Part II and sections

12.4, 12.5 and 12.13 of the Canada Occupational Safety and Health

Regulations.

Employees of the carload centre were not wearing the prescribed

protection equipment.

2. The second issue to be decided is the third item of the direction

which reads as follows:

Paragraph 125(i) of the Canada Labour Code, Part II.

The employer shall ensure that the vehicles and mobile equipment

used by the employees in the course of their employment meet

prescribed safety standards.

As noted by Mr. Merritt, paragraph 125(i) of the Code calls for a

specific provision of the Regulations that addresses safety standards

for motor vehicles, a provision which manifestly does not exist. It is

a well known fact that motor vehicles in general are subject to

provincial legislation. It is likely for this reason that Part XIV

(Materials Handling) of the Regulations does not apply to or in respect

of the use and operation of motor vehicles on public roads (para.

14.2(a)). Evidently then, the reference to paragraph 125(i) of the

Code was inappropriate since nothing in the Regulations specifically

addresses safety standards for motor vehicles used and operated on

private properties such as the McGregor Yard.

Nonetheless, compliance with provincial safety standards is a pre-

requisite to using any licensed motor vehicles. Failure to meet these

minimum standards, which in this case corresponds to a deficient rear

brake system, demonstrates that, whether intentionally or not, the

employer has not taken the necessary measures to protect the safety and

health of its employees at work, a fundamental requirement which is

expressed by section 124 of the Code. As a minimum, a motor vehicle

must be safe under all conditions of its intended use.

Mr. Peel stated that the deficiencies to the braking system would have

made no difference in this situation. That argument does not justify

the poor condition of the vehicle which could have jeopardized the

safety and health of any of CN's employees that was using or was in the

vicinity of the truck in question. Mr. Peel also stated that CN has a

rigorous maintenance program and that the deficiencies identified are

probably the result of a concealed fraud. However, the safety officer

did not have that information at the time of his investigation and, I

understand that the police investigation is in progress but is not

completed. Depending on the result of that investigation, the employer

could certainly use the alleged fraud as a defense in other

proceedings, if any are instigated.

In my opinion, the employer was in non-compliance with section 124 of

the Code for not ensuring that its motor vehicles were safe under all

conditions of their intended use, whether they are used on public or

private roads and whether or not they meet provincial safety standards.

Evidently, the vehicle involved in the collision was not safe for its

intended use, due to the condition of the brake system, regardless of

whether that would have changed anything to the situation at hand or

not.

For all the above reasons, I HEREBY VARY item number three of the

direction by replacing the following reference and description i.e.

3. Paragraph 125(i) of the Canada Labour Code, Part II.

The employer shall ensure that the vehicles and mobile equipment

used by the employees in the course of their employment meet

prescribed safety standards.

with the following reference and description i.e.

3. Section 124 of the Canada Labour Code, Part II.

Motor vehicle #078446, which was in contact with Mr. Crowe, was

found to be in an unsafe condition due to the deficiency in the

brake system.

Decision rendered on February 14, 1996

Serge Cadieux

Regional Safety Officer

APPENDIX I

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO CN RAIL NORTH AMERICA

UNDER SUBSECTION 145(1)

On April 26, 1995, the undersigned safety officer conducted an accident

investigation in the work place operated by CN North America, being an

employer subject to the Canada Labour Code, Part II, at CN North

America, Sarnia, Ontario, the said work place being sometimes known as

CN McGregor Yard.

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

of the Canada Labour Code, Part II, are being contravened:

1. Paragraph 125(j) of the Canada Labour Code, Part II.

Paragraph 12.13 of the Canada Occupational Safety and Health

Regulations.

Employees required to work in the yard area who are exposed to

contact with moving vehicles are to wear high-visibility vests or

other similar clothing.

2. Paragraph 125(v) of the Canada Labour Code, Part II.

The employer shall ensure that every person granted access to the

workplace by the employer is familiar with and uses, in the

prescribed circumstances and manner, all prescribed safety

materials, equipment, devices and clothing.

3. Paragraph 125(i) of the Canada Labour Code, Part II.

The employer shall ensure that the vehicles and mobile equipment

used by the employees in the course of their employment meet

prescribed safety standards.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of

the Canada Labour Code, Part II, to terminate the contraventions

immediately.

Issued at LONDON, ONTARIO, this 12th day of MAY 1995

R.D. (Bob) Fortner

Safety Officer #1705

To: CN North America

277 Front Street West, Suite 405

Toronto, Ontario M5V 2X7

Attention: Pat L. Ross, Manager

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-001

Applicant: Canadian Auto Workers, Local 100

Respondent: CN North America

KEYWORDS: High visibility nest, motor vehicle, protective

headwear, protective footwear.

PROVISIONS: Code: 124, 125(i), 125(s), 125(v)

COSHRegs: 12.4, 12.5, 12.13, 12.15, 14.2

SUMMARY:

A safety officer gave a direction under subsection 145(1) of the Code

to CN Rail as a result of a serious accident that occurred around 4:00

p.m. when a motor vehicle hit a CN transportation clerk. At the time

of the accident, the clerk was bent over in front of his vehicle, with

headlights on and trying to read something. The investigation of the

safety officer revealed that the injured employee was not wearing a

high visibility vest and neither personal protective equipment such as

foot protection or head protection. It was also determined that the

vehicle involved in the collision had serious deficiencies in the rear

brakes. The direction addressed each issue separately.CAW appealed

the last two items of the direction.

The second item was appealed because the safety officer omitted to

reference any provision of the Regulations addressing protective

equipment while paragraph 125(v) of the Code required an infraction of

the Regulation to be itendified. The RSO agreed and VARIED the

direction by referencing sections 12.4, 12.5 and 12.13 of the

Regulations.

The third item of the direction was appealed because it referenced a

prescribed standard for motor vehicles while it was agreed that no such

standard existed. The RSO agreed to some extent and VARIED the

direction by referencing section 124 of the Code.