Archived - Decision: 96-008 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:96-008
Applicant: Transport Super Rapide inc.
Montreal, Quebec
Represented by: François Bouchard, Counsel
Interested party: Teamsters, Local 931
Represented by: Réjean Massé, Business Agent
Mis-en-cause: Pierre Morin
Safety Officer
Human Resources Development Canada
Before: Serge Cadieux
Regional Safety Officer
Human Resources Development Canada
This case was heard and decided by means of written submissions and a teleconference.
Background
On November 3, 1995, safety officer Pierre Morin visited the Lafarge
Canada inc. cement works to conduct an inspection under Part II of the
Canada Labour Code (hereinafter the Code). The safety officer visited
this place to observe the work procedures of employees of Transport Super
Rapide inc. In his Narrative Report, the safety officer describes his
observations as follows:
"During my visit, I observed the work procedures of two employees of
different companies, Lafarge and Transport Super Rapide. This
observation enabled me to determine that in both cases, the employees
must access the manhole located on top of the tank trailer by
walking along a walkway in the form of a metal grid. They must do
this before loading, in order to open the manhole, and after loading,
in order to close it. I could see that the upper part of the tank
trailer of Transport Super Rapide was equipped with two small metal
walkways adjacent to the main walkway. I could also see that the
height of these walkways exceeded 2.4 metres.
When I returned to my office, I consulted decisions of the
regional safety officer for similar cases: Mantei's Transport
Ltd., Calgary, Alberta; Auto Haulaway Inc., Oakville, Ontario; M/C
Motors Carriers Limited, Oshawa, Ontario.
These decisions found in favour of the federal safety officers who
had ordered employers to take steps to comply with the regulatory
provisions of section 12.10(1)(a) and (l) for any unguarded
structure more than 2.4 metres above the nearest permanent safe
level.
Whereas, therefore, the tank truck observed did no meet the
regulatory requirements even though a wa1lkway adjacent to the
principal walkway would not prevent an employee from falling if
the employee lost his footing;
For all the reasons stated, I issued the employer, Transport Super
Rapide, a direction requesting it to comply with the regulatory
provisions in order to provide safe access for its employees to
the top of the tank trailers."
A direction (APPENDIX) was issued to the employer under subsection 145(1)
of the Canada Labour Code, Part II.
Submissions for the employer
Mr. Bouchard presented the following three arguments to the regional
safety officer:
- the tank trucks operated by our client do not constitute a structure
within the meaning of section 10.12 of the Canada Occupational Safety
and Health Regulations;
- the CSA standards listed in paragraphs (a), (b) and (c) of section
12.10.2 of the Canada Occupational Safety and Health Regulations
clearly do not apply to the type of operation performed by the
employees of our client. On this second point, section 12.10 of the
said Regulations cannot therefore apply in the instant case;
- generally speaking, a thorough reading of the Canada Occupational
Safety and Health Regulations, the other regulations and the Canada
Labour Code reveals that our client does not have to comply with
safety officer Morin's directions.
Moreover, Mr. Bouchard pointed out that, in a case involving Transport
Provost, a judge of an Ontario court acquitted this carrier in a case
almost identical to the instant case. Mr. Bouchard subsequently asked
the regional safety officer to suspend the hearing in this case until a
Court of Appeal in Ontario rendered a decision, the trial judge's
decision having been appealed. This request was granted.
Submissions for the employee
Mr. Massé did not have to submit arguments in this case. In fact,
following a teleconference in which he participated, along with Mr.
Bouchard, Mr. Morin, accompanied by his technical advisor, Mr. Richard
Dupuis, and myself, we agreed that the decision of the Court of Appeal
had effectively settled the matter at issue in this case.
Decision
The question that I must decide in this case is this: does a tank truck
constitute a structure within the meaning of paragraph 12.10(1)(a)(i) of
the Regulations? This provision reads as follows:
12.10(1) Where a person, other than an employee who is installing or
removing a fall-protection system in accordance with the instructions
referred to in subsection (5), works from
(a) an unguarded structure that is
(i) more than 2.4 m above the nearest permanent safe level,
the employer shall provide a fall-protection system.
In the course of their duties, the Department of Human Resources
Development's safety officers have conducted investigations and
inspections in all areas of federal jurisdiction, including the
interprovincial trucking industry. They were therefore justified in
arguing that the structures covered by section 12.10 of the regulations
also applied to the trucking industry. Consequently, trucks were
considered structures and the entire interprovincial trucking industry
had to comply with the above-described regulatory requirement. The
Office of the Regional Safety Officer also interpreted this provision in
the same manner. Moreover, the safety officer relied, in part, in
issuing the attached direction, on decisions rendered by me.
However, recently, in Her Majesty the Queen v. Transport Provost inc.,
Mr. Justice J. H. Jenkins interpreted section 12.10 of the Regulations in
the opposite manner. He affirmed the decision rendered by the Honourable
Judge D.M. Stone of the Ontario Court (Provincial Division) in which the
defendant (Transport Provost) was acquitted of six charges laid by the
plaintiff (the Crown) for breaches of the Canada Labour Code and the
Canada Occupational Safety and Health Regulations. The whole debate
centered on what constitutes a structure within the meaning of section
12.10 of the Regulations.
Mr. Justice J. H. Jenkins analysed the case law, considered various
dictionary definitions, applied the rules of interpretation and rendered
the following judgment:
"I am satisfied that the ordinary meaning of structure cannot include
a truck or tank trailer.
Applying an expanded meaning to the word structure, since the
legislation is remedial by nature, it cannot in my view include a
truck or tank trailer which are mobile vehicles. Under certain
circumstances, if a tank trailer were converted to a non-mobile
permanent use similar to a house trailer, then it might qualify
under the expanded definition. The legislature must have
considered this issue, since it dealt with unguarded structures,
temporary structures, and ladders in section 12.10.
I agree with the learned trial judge in his interpretation of the
law, and dismiss this appeal."
The safety officer's direction was issued under section 145(1) of the
Code. This provision authorizes the safety officer to issue a direction,
in this case to the employer, "where a safety officer is of the opinion
that any provision of this Part is being contravened...". This is
exactly what the safety officer did in the instant case in pointing out
that Transport Super Rapide had contravened the following provisions of
the Code:
Paragraph 125(j) of Part II of the Canada Labour Code and
subparagraph 12.10(1)(a)(i) of Part XII (safety materials, equipment,
devices and clothing) of the Canada Occupational Safety and Health
Regulations.
Because the Crown was nonsuited twice by the Ontario courts, I am obliged
to recognize the validity of the decisions rendered. Consequently, the
ordinary meaning of the term structure cannot be expanded to include a
truck, a tank truck or a tank trailer. This does not mean that there is
no risk in working on mobile vehicles more than 2.4 metres above the
nearest permanent safe level. I am merely recognizing that the
Regulations make no specific provisions for employees working unprotected
on these vehicles. Since the safety officer_s direction is based on such
a specific provision, I am obliged to rescind it because it is unfounded
in law.
The regional safety officer's power, when reviewing a direction, is
specified in subsection 146(3), which reads as follows:
(3) The regional safety officer shall in a summary way inquire into
the circumstances of the direction to be reviewed and the need
therefor and may vary, rescind or confirm the direction and
thereupon shall in writing notify the employee, employer or trade
union concerned of the decision taken.
(emphasis added)
Consequently, even if it is acknowledged that there are risks in working
on these vehicles without protective devices, the law does not authorize
the regional safety officer to issue a new direction to the employer
under paragraph 145(2)(a) of the Code. I addressed this situation in
Westcoast Energy Inc. v. Occupational Safety and Health Committee and
Canadian Pipeline Employees' Association, unreported decision No.
93-007, at page 8, in which I wrote as follows:
"I do not conclude from the above that the absence of a procedure to
abort a pig launch does not place the employee in a situation of
risk. I am merely observing that the absence of such a procedure does
not constitute an infraction which can be corrected under subsection
145(1) of the Code. Furthermore, since the safety officer purported
to act under this latter provision, I cannot look at whether the
safety officer could have acted under subsection 145(2) of the Code.
To do so, I would have to substitute my decision for that of the
safety officer and, if needed, issue directions, a power which is not
entrusted upon the Regional Safety Officer when acting under section
146 of the Code."
For all the above reasons, I HEREBY RESCIND the direction issued on
November 23, 1995 under subsection 145(1) of the Code by safety officer
Pierre Morin to Transport Super Rapide inc.
Decision rendered on April 25, 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 SUBSECTION 145(1)
On November 3, 1995, the undersigned safety officer checked the work
procedures used by employees during loading of the tanks of trucks
operated by Transport Super Rapide inc., an employer subject to Part II
of the Canada Labour Code and located at 12321, boul. Métropolitain
est, Montréal (Québec) H3B 3Z5.
The said safety officer is of the opinion that the following provisions
of Part II of the Canada Labour Code have been contravened:
Paragraph 125(j) of Part II of the Canada Labour Code, and
subparagraph 12.10(1)(a)(i) of Part XII (safety materials,
equipment, devices and clothing) of the Canada Occupational Safety
and Health Regulations.
In this case, the persons working more than 2.4 m above the nearest
permanent safe level are not protected against falls.
I hereby order you pursuant to subsection 145(1) of Part II of the
Canada Labour Code to cease the contraventions not later than January
20,1996.
Issued at Montreal, this 23 day of November 1995.
Pierre Morin
Safety Officer
No. 1726
TO: Transport Super Rapide inc.
12321, boul. Métropolitain est
Montréal (Québec)
H3B 3Z5
SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER
Decision No.: 96-008
Applicant: Transport Super Rapide
Interested party: Teamsters, Local 931
KEYWORDS:
Structure, truck, tank truck, Transport Provost.
PROVISIONS:
Code: 125(j), 145(1)
Regs: 12.10(1)(a)
SUMMARY:
A safety officer issued a direction under subsection 145(1) of the Code
for a contravention of paragraph 12.10(1)(a) of the Regulations. This
provision stipulates that a fall-protection system shall be provided to
an employee working from an unguarded structure more than 2.4 metres
above the nearest permanent safe level. This instruction was to the
same effect as previous decisions rendered by the regional safety
officer and in which trucks in general were equated with structures.
However, in a similar case that ended up in the Ontario Court of
Appeal, the judge held that a truck or a tank trailer was not a
structure within the meaning of section 12.10 of the Regulations. The
regional safety officer therefore had no choice but to RESCIND the
direction, since it was unfounded in law.
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