Archived - Decision: 96-009 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH
Archived information
Archived information is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.
Review under section 146 of the Canada Labour Code, Part II
of a direction issued by a safety officer
Decision No.: 96-009
Applicant: Services de Quai Fagen inc.
Represented by: Jean Gaudreau, counsel
Respondent:United Steelworkers of America
Represented by: Patrick Lenormand, union steward
Mis-en-cause: Denis Caron
Safety Officer
Human Resources Development Canada
Before: Serge Cadieux
Regional Safety Officer
Human Resources Development Canada
This case was heard by way of written submissions.
On December 14, 1995, safety officer Denis Caron issued a direction
(ATTACHED) to Services de Quai Fagen inc. under subsection 145(1) of
the Canada Labour Code, Part II. The safety officer issued a direction
in this case to the employer concerning the accident suffered by
Mr. Guévin, a longshoreman working for Services de Quai Fagen inc., on
November 15, 1995. The safety officer described as follows the
circumstances in which the accident occurred:
"8. On November 15, 1995, at the time of the accident, the employee
of Services de Quai Fagen inc., Mr. Jean Pierre Guévin, and his
fellow workers (Patrick Lenormand and Marcel Tremblay) were
passengers in a flatbed truck that was transporting a load of
packaged steel from Shed "D" to Shed "A".
9. This accident occurred when Mr. Jean Pierre Guévin, who was on
his way from Shed "D" to Shed "A" to take his break, climbed
onto the loaded flatbed of the truck between the cab and the
load of packaged steel. When the truck, with Mr. Marcel
Tremblay, foreman and driver, and Mr. Patrick Lenormand,
passenger, in the cab, began to move, Mr. Guévin sat down on the
load of steel. When the truck reached the place where it was to
be unloaded, Marcel Tremblay, the driver, slowed down, at which
point Mr. Guévin began to stand up. The truck stopped suddenly,
whereupon Mr. Guévin was propelled headlong into the wall of the
cab, his body crumpled up, and the flying packages of steel
struck him in the legs, breaking them both."
An application to review the direction issued by the safety officer was
filed within the prescribed time limits by Mr. Jean Fortier, engineer,
health and safety, for Services de Quai Fagen inc. The reason given by
Mr. Fortier is that "the work done on the premises in question was not
under your jurisdiction, but under the jurisdiction of the Commission
de la santé et de la sécurité du travail [du Québec]."
Later, Mr. Gaudreau intervened in this case and represented the
interests of Services de Quai Fagen inc. He sent the regional safety
officer a detailed statement of the reasons for the application for
review of the directions. Since the reasons given by Mr. Gaudreau were
essentially the same as those cited by Mr. Fortier, I sent Mr. Gaudreau
a letter dated April 16, 1996 in which I explained the following:
"As you know, section 571 of the Federal Court Act provides that
notice shall be served on the Attorney General of Canada and the
attorney general of each province where the applicability of an Act
of Parliament is in question before a federal board, commission or
other tribunal, such as the regional safety officer.
__________
1 57.(1) Where the constitutional validity, applicability or
operability of an Act of Parliament or of the legislature of any
province, or of regulations thereunder, is in question before the
Court or a federal board, commission or other tribunal, other than
a service tribunal within the meaning of the National Defence Act,
the Act or regulation shall not be adjudged to be invalid,
inapplicable or inoperable unless notice has been served on the
Attorney General of Canada and the attorney general of each province
in accordance with subsection (2).
(2) Except where otherwise ordered by the Court or the federal
board, commission or other tribunal, the notice referred to in
subsection (1) shall be served at least ten days before the day on
which the constitutional question described in that subsection is to
be argued.
(3) The Attorney General of Canada and the attorney general of each
province are entitled to notice of any appeal or application for
judicial review made in respect of the constitutional question
described in subsection (1).
(4) The Attorney General of Canada and the attorney general of each
province are entitled to adduce evidence and make submissions to the
Court or federal board, commission or other tribunal in respect
of the constitutional question described in subsection (1).
(5) Where the Attorney General of Canada or the attorney general of
a province makes submissions under subsection (4), that attorney
general shall be deemed to be a party to the proceedings for the
purposes of any appeal in respect of the constitutional question
described in subsection (1).
You will find enclosed a copy of section 57 of the Federal Court
Act, and the list of addresses of the thirteen attorneys
general. The notices in question must be in accordance with Form
2.1 of the Federal Court, a copy of which is also enclosed."
Further to this notice, Mr. Gaudreau sent me a letter dated April 29,
1996 to inform me of the following:
"Without making any admission as to the applicability of the Canada
Labour Code, Part II, we are withdrawing our application for review
of the direction issued on December 14, 1995, without prejudice."
As the Regional Safety Officer responsible for reviewing this
direction, I hereby confirm that Services de Quai Fagen inc. has
WITHDRAWN the application for review that it had filed in respect
of the direction issued by safety officer Denis Caron on December 14,
1995. I declare this file closed.
Decision rendered on May 8, 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 December 12, 1995, the undersigned safety officer conducted an
inspection in the workplace operated by Services de Quai Fagen inc.,
an employer subject to Part II of the Canada Labour Code and located
in the Port de Sorel, C.P. 97, Sorel (Québec) J3P 5N6, the said
workplace being located at 201, rue Montcalm, St-Joseph-de-Sorel, and
sometimes called Shed #5 Beloit.
The said safety officer is of the opinion that the following provisions
of Part II of the Canada Labour Code have been contravened:
1. Subsection 127.(1) of Part II of the Canada Labour Code:
The employer moved, without the authorization of a safety
officer, the debris and objects associated with the work accident
of Mr. Jean-Pierre Guévin, "operator", that occurred on November
15, 1995.
2. Paragraph 125(c) of Part II of the Canada Labour Code and paragraph
15.8(2)(b) of the COSHR:
The employer did not submit to a safety officer, within fourteen
days after the accident on November 15, 1995, an investigation
report on the hazardous occurrence.
Accordingly, you are HEREBY ORDERED, under subsection 145.(1) of Part II of
the Canada Labour Code, to cease all contraventions not later than
December 12, 1995.
Issued at Montreal, this 14th day of December 1995.
Denis Caron
Safety Officer
TO: Services de Quai Fagen inc.
Port de Sorel
C.P. 97
Sorel (Québec)
J3P 5N6
SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER
Decision No.: 96-009
Applicant: Services de Quai Fagen inc.
Respondent: United Steelworkers of America
KEYWORDS:
Accident, jurisdiction, Federal Court Act, withdrawal, longshoreman.
PROVISIONS:
Code: 145(1)
Federal Court Act: 57
SUMMARY:
An accident occurred when a longshoreman, who was employed by Services
de Quai Fagen inc., had both his legs broken while he was seated on a
load of packages of iron transported by a truck. The safety officer
issued a direction that was contested on the ground that the work
performed was not under the jurisdiction of the Canada Labour Code,
Part II. The regional safety officer then informed the lawyer
representing the company of the applicability of section 57 of the
Federal Court Act, whereupon the company withdrew the application for
review. The file was then closed.
Page details
- Date modified: