Archived - Decision: 96-009 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.: 96-009

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.

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