Archived - Decision: 96-006 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: 96-006

Applicant: CN North America

Charny, Quebec

Represented by: L Michel Huart, counsel

Interested party: Brotherhood of Maintenance of Way Employees

Represented by: André Trudel, General Chairman

Mis-en-cause: Claude Léger

Safety Officer

Human Resources Development Canada

Before:Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

A hearing was held at Ste-Foy, Quebec on March 28, 1996.

Background

Around 2:30 p.m. on August 29, 1995, Mr. Christian Harvey, a CN

employee who was working on scaffolding erected under the bridge at

mileage 97.6 of the Montmagny subdivision, exercised his right to

refuse to perform "dangerous" work. Mr. Harvey was "refusing to work

under a railway bridge while a train was crossing the bridge because of

safety risks owing to the fact that objects and hazardous substances

could fall on him and injure him". It should be noted that, in this

case, the employee did not express any concern about working on

scaffolding under the bridge and that the safety officer's

investigation was confined to the reason for refusing to work given by

Mr. Harvey.

Safety officer Claude Léger intervened in this case on August 30, 1995

around 8:00 a.m. The employee was not present during this

investigation because he was apparently ordered off the work site

following his refusal to work. The safety officer's investigation

report stated that no representative of the employee was present at the

scene of the refusal to work. The safety officer nevertheless decided

to continue his investigation and met with Mr. Morel, supervisor of

structural works for CN. He told the safety officer that "based on his

work experience and to his knowledge, no train part and no hazardous

substance fell on employees when they were working under a bridge while

a train was crossing the bridge. Moreover, in Mr. Morel's opinion, the

risk of a hazardous substance spilling or escaping while a train was

crossing the bridge was extremely low.

The safety officer stated that, during his investigation, he noted the

following facts:

- the bridge in question is a single-track bridge;

- the deck of the bridge is approximately 17 feet 2 inches wide and

the scaffolding located under the bridge was approximately 17 feet 6

inches wide;

- the scaffolding was installed directly beneath the bridge; one

section was approximately 10 feet 3 inches tall and another section

was approximately 12 feet 4 inches tall (measurements taken between

the floor of the scaffolding and the base of the railway ties);

- there is a space of approximately 4 inches between each of the

bridge's ties;

- trains are ordered to reduce their speed to a maximum of 20

miles/hour when crossing a bridge;

- the work being done on the scaffolding installed beneath the

bridge stopped when the Rule 42 foreman announced that a train was

going to cross the bridge;

- the employees remained on the scaffolding beneath the bridge while

trains were crossing it;

- there were pieces of crushed stone approximately 2 inches in

diameter on the beams supporting the ties and these stones fell onto

the scaffolding when a train crossed the bridge, according to the

testimony of a witness;[1]

- no measure is taken by the employer just prior to a train's

crossing the bridge to ensure that no object or any other substance

can fall during the crossing;

- no device or material such as wood, screening, etc. was installed

on or underneath the deck of the bridge to prevent any object or

substance from falling between the bridge's ties and reaching the

scaffolding.

The safety officer made the following four specific observations:

- parts, objects or substances forming part of or being transported

by trains can fall from moving trains;

- there are stones lying on the ties of the bridge and these stones

can move and fall while trains are crossing the bridge;

- no specific measure is taken by the employer to ensure that no

object or substance being transported by trains can fall from the

trains while the latter are crossing the bridge;

- the location of the scaffolding at the time, i.e., directly

beneath the deck of the bridge, did not did allow the employees to

take cover while a train was crossing the bridge.

Based on the above four specific observations, the safety officer

decided that there was a danger to Mr. Harvey in working under such

conditions. He issued a direction (APPENDIX) under paragraph 145(2)(a)

of the Canada Labour Code, Part II (hereinafter the Code). Moreover,

at the hearing in the case, the safety officer explained that the

direction issued was in keeping with the intent of subsection 3.13(1)

of the Canada Occupational Safety and Health Regulations (hereinafter

the Regulations).

Submission on behalf of the employer

Mr. Huart's detailed arguments were entered in the record. He stated

that CN's records revealed that, during approximately 850,000 hours of

work performed under similar conditions, there had been no accident

associated with the type of danger described by the safety officer.

Moreover, Mr. François Laporte, loss control specialist, estimated the

probability of an accident of the type described above occurring at

10-20, which is an infinitesimal risk.

Moreover, if a piece of equipment came loose from a moving train, or a

rock[2] managed to fall through one of the spaces separating the ties -

and these spaces were only four inches wide - the movement and rubbing

between the ties would reduce the speed at which the object fell,

thereby reducing the impact of its fall. In fact, even if an object

was thrown up by the movement of the train, it would probably be

directed to the side of the track, and not downward.

Mr. Huart pointed out at the hearing in this case that it was virtually

impossible for a hazardous substance being transported by train to

escape from tank cars because of safety devices specifically designed

to prevent such leakages. For example, tank car valves were equipped

with bells that prevented leakages from occurring. The safety officer

admitted that he was not familiar with the devices that these tank cars

were required to carry.

Mr. Huart noted that, insofar as a real danger was concerned, Mr.

Harvey did not provide any real evidence to support his reason for

refusing to work. Moreover, Mr. Harvey had been working for years on

these bridges and had never before expressed any fear about a danger of

injury. Mr. Richard Gauthier, supervisor of the site, stated that when

Mr. Harvey refused to work, he was in the centre of the bridge on the

scaffolding and was cutting some rivets. Mr. Gauthier stated that Mr.

Harvey, like all the other employees, had been informed of the

application of Safety Rule 42 to this workplace. Under this rule,

communication is established between the train crew and an employee on

the ground where the work is being done. The train cannot cross the

bridge until it receives permission to do so from the designated

employee on the ground. At that point, work stops until the train has

crossed the bridge. The train's speed at that point is approximately

20 miles/hour.

Finally, the safety officer neglected to take into account the fact

that employees working on scaffolding wear personal protective

equipment that should be sufficient to protect them should any

material, like stones lying on the track, fall between the ties.


Submission on behalf of the employee

Mr. Trudel was of the view that one should not wait until an accident

happens to act even if the probability of an accident happening is

infinitesimal. Installing sheets of plywood the width of the bridge

would suffice to protect employees because, in some cases, it was

almost impossible to leave the work site under the bridge. Moreover,

the company's attitude in this case was not beyond reproach.

Mr. Harvey was ordered off this work site, whereas in other situations,

employees were offered other work assignments. In addition, Mr. Trudel

argued that the situation must be viewed from another angle. If, for

example, one was dealing with a bridge of more than 200 feet, would

measures be necessary? According to Mr. Trudel, the regional safety

officer's decision should reflect this consideration.

Decision

The question to be answered in this case is the following: at the time

of the safety officer's investigation, did Mr. Harvey's workplace

present such dangers that he was justified in refusing to work there

until the situation was rectified? In fact, it was the Federal Court

of Appeal that clarified the safety officer's role in Bonfa v.

Minister of Employment and Immigration, decision No. A-138-89, in

which Mr. Justice Louis Pratte wrote as follows:

"...the function of the safety officer is solely to determine

whether, at the time he does his investigation, that place presented

such dangers that employees were justified in not working there."

Consequently, the safety officer had to determine whether, at the time

he did his investigation, i.e., on August 30, 1995 around 8:00 a.m.,

Mr. Harvey's workplace presented such dangers, namely, the possibility

of objects and hazardous substances falling on him and injuring him,

that he was justified in not working there. I had occasion to deal

with the notion of danger in Air Canada v. Canadian Union of Public

Employees, unreported decision No. 94-007 (R), in which I wrote as

follows:

In order to answer these questions, I must consult the definition

of the word "danger" in subsection 122(1) of the Code and apply

this definition in light of the case law. "Danger" is defined 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.

(underlining added)

The courts have had many opportunities to interpret the scope of

the term "danger". From this case law two extremely important

points have emerged that have guided me in my decision.

The first point is that the danger must be immediate. Thus, the

expression "before the hazard or condition can be corrected" has

been associated with the concept of "imminent danger" that

existed before the Code was amended in 1984. In Pratt, the

Vice-Chairman of the Canada Labour Relations Board, Hugh R.

Jamieson, wrote:

"...Parliament removed the word "imminent"from the

concept of danger ... but replaced it with a definition

that has virtually the same meaning."

The second point I take from a large number of decisions is that

the employee's exposure to the hazard or situation must be such

that the likelihood of injury is obvious. Accordingly, the

danger must be more than hypothetical, or there must be more

than a small probability of its becoming a reality. The danger

must be immediate and real, and no doubt must remain regarding

its imminence. It must be sufficiently serious to justify, in

the case under consideration, discontinuation of use of the

seats for flight attendants."

I draw the following conclusions from the instant case:

- Mr. Harvey was not present during the safety officer's

investigation and was not therefore in a situation that posed a

danger at the time;

Note: This point was not debated before me.However, this

raises some very serious questions concerning the relevance for

the safety officer of pursuing his investigation based on a

refusal to work under such conditions.

- Mr. Harvey is an employee who has been working under the same

conditions for a number of years and has never sustained any

injuries;

- CN's records indicate that, during 850,000 hours of work, there

have never been any accidents reported concerning the dangers

alleged by Mr. Harvey, the danger being almost nil at the time;

- Mr. Harvey was beneath the centre of the bridge when he refused to

work, and this eliminates the risk of injury from falling stones,

these stones being found only on the first ten ties of the bridge;

- Rule 42 was in effect whenever a train crossed the bridge, and

this significantly reduced the train's speed and halted work on the

scaffolding;

- the risk of toxic substances leaking is minimal and highly

unlikely because the valves of the tank cars are equipped with

protective devices. With regard to the discharge of fecal matter

from passenger cars, directives are in effect that prohibit the

responsible railways from engaging in such practices; and

- all the employees, including Mr. Harvey, wear personal protective

equipment, i.e., helmets, protective footwear, work gloves, etc., in

the workplace. Only the face is exposed, but through the

application of Rule 42, employees stop work while the train is

crossing the bridge and do not have to work looking up.

Note: There was no discussion, in this case, of the wearing of

safety goggles by employees required to look up while working. I

am therefore assuming that this personal protective equipment is

worn where the situation warrants.

Finally, I am of the opinion that subsection 3.13(1) has no application

in the instant case. This provision reads as follows:

3.13 (1) Where there is a hazard that tools, equipment or materials

may fall onto or from a temporary structure, the employer shall

provide a protective structure or a safety net to protect from

injury any employee on or below the temporary structure.

There was no tool or piece of equipment on the bridge that could have

fallen through the openings between the ties. With regard to

materials, this term, as defined in Webster's New World Dictionary,

1988 revised edition, must be taken to mean "implements, articles,

etc. needed to make or do something". It was established that no piece

of material small enough to fall through the openings was present on

the bridge when the safety officer did his investigation.

Based on these findings, I conclude that there was no danger to Mr

Harvey, the only employee to have alleged that a danger existed, when

the safety officer did his investigation. I conclude that the danger

that Mr. Harvey feared and that the safety officer confirmed was based

on a situation that had no factual basis and that was extremely

hypothetical. The alleged danger was not therefore real, or immediate,

and there was very little likelihood of its becoming a reality.

Consequently, the situation investigated by the safety officer did not

warrant the directions issued. For all these reasons, I HEREBY RESCIND

the directions issued under paragraph 145(2)(a) of the Code by safety

officer Claude Léger on September 5, 1995 to CN North America.

Decision rendered on April 16, 1996

Serge Cadieux

Regional Safety Officer

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

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

On August 30, 1995, the undersigned safety officer conducted an

investigation in the workplace located at bridge 97.60 of the Montmagny

subdivision and operated by CN North America, an employer subject to

Part II of the Canada Labour Code, and located at 2600, avenue de la

Rotonde, Charny (Québec), G6X 2M1.

The said safety officer is of the opinion that the situation that

exists in the place in question constitutes a danger to an employee at

work, namely:

That whenever a train crosses bridge 97.60 of the Montmagny

subdivision, the employees on the scaffolding under the said

bridge are exposed to falling objects or other substances that

could cause injury.

Consequently, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a)

of Part II of the Canada Labour Code, to immediately take measures

for guarding the source of the danger.

Issued at Montreal, this 5th day of September 1995.

Claude Léger

Safety Officer

No. 1778

TO: CN North America

2600, avenue de la Rotonde

Charny (Québec)

G6X 2M1

SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER

Decision no.: 96-006

Applicant: CN North America

Interested party: Brotherhood of Maintenance of Way Employees

KEY WORDS:

Rule 42, bridge, scaffolding, ties, stones, ballast, personal

protective equipment, absent employee, refusal, material.

PROVISIONS:

Code: 145(20(a)

Regs: 3.13(1)

SUMMARY:

A safety officer concluded that an employee of CN was in a situation

that constituted a danger. The danger consisted of the fact that it was

dangerous to work on scaffolding under a railway bridge while a train

was crossing the bridge because objects or hazardous substances could

fall on the said employee and injure him.

Upon review, the regional safety officer concluded that the alleged

dangers were not immediate or real, but merely hypothetical. Moreover,

the employee who had refused to work was not present at the work site

when the safety officer conducted his investigation, and this same

employee had years of experience working on this type of site without

ever having sustained an injury. The regional safety officer also

determined that subsection 3.13(1) did not apply in the instant case.

No danger existed at the time the safety officer conducted his

investigation and the regional safety officer RESCINDED the

direction.

It was impossible to identify the witness in question and little credibility can be given to this testimony.

[2] It was established that there was ballast, i.e., the crushed stone on which the ties rest, on the first ten ties at each end of the bridge.

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