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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