Archived - Decision: 96-011 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II

of a direction issued by a safety officer

Decision No.: 96-011

Applicant: Farmers Co-op Seed Plant Limited

Rivers, Manitoba

Represented by: Don Kostesky, General Manager

Respondent: Richard Wiebe

Employee safety and health representative

Mis en cause: Terry McKay

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. Although I

attempted to visit the work place named in the direction, the schedules

of the parties could not be accommodated.

Background

This case began with an inspection, on April 5, 1995 by safety officer

Terry McKay, of the facility owned by the Farmers Co-op Seed Plant at

Rivers, Manitoba. Of particular interest in this case is the building

described as the seed cleaning plant. The safety officer reported that

there was no emergency lighting in the plant. He also noted that the

plant would operate at certain times of the year on a day and evening

production schedule. An assurance of voluntary compliance (AVC), duly

signed by Mr. Kostesky, was obtained respecting this issue. During a

telephone conversation that he had on December 13, 1995, Mr. Kostesky

voiced a number of concerns with certain AVC items. The safety officer

describes those concerns and the ensuing discussion with Mr. Kostesky

in the following manner:

#1. He believes that emergency lighting would be ineffective due

to grain dust accumulation on the lens and feels that a

better alternative would be to issue each employee a hand

held flashlight.

#10. He strongly contests the classification of the seed cleaning

plant as a high fire hazard area because in his opinion

there is more than adequate natural ventilation which would

prevent significant airborne levels of dust in the plant.

We had a lengthy discussion of the Part II Code requirements and

the compliance policy. I agreed to mail the copy of a direction

appeal of emergency lighting requirements in a similar seed plant,

National Building Code (1990) (NBC) major occupancy classification

and high hazard industrial occupancy definitions (Appendix E). As

well as, the Canadian Occupational Safety and Health Regulations

(COSH) definition of "Fire Hazard Area."

During a subsequent telephone conversation, Mr. Kostesky informed the

safety officer that he believed that the seed plant should be

classified as a primary grain elevator and, as such, exempted (sic)1

from the emergency lighting requirements. A direction (APPENDIX) was

issued and a timely appeal was lodged.

Submission of the employer

Mr. Kostesky claims that a seed cleaning plant is so closely related to

a primary grain elevator, from both a physical and operations

perspectives, that it should be exempted (sic) from the emergency

lighting requirements. When comparing the functions of the two

facilities, Mr. Kostesky concludes that the two are virtually the same

and gives the following examples:

"Primary grain elevators receive grain from producers, we do the

same. Primary grain elevators have within their operations grain

cleaning equipment, we have grain cleaning equipment also. Primary

grain elevators provide storage for grain within their facilities.

Our facility only holds grain during the cleaning operation, storage

is provided outside of the plant itself which is inherently safer

because grain is not in the plant within a confined facility. Some

primary elevators operate their cleaning facilities on a twenty-four

hour day preparing grain for export standard, we do the same except

we are preparing seed not grain for export."

__________

1 Both the safety officer and Mr. Kostesky inaccurately refer to the

term "exempt" throughout the text. The proper reference should be

"except" as found in subsection 6.10(2) of the Regulations. Exempt

means one does not have to comply with an obligation whereas others do.

"Except" means one does not have to follow the same rule as others but

must still comply with the obligation in another manner.

Mr. Kostesky contends that the only reason that they do not hold a

primary grain elevator licence is because they do not buy and sell

grain on a commercial basis for export. However, says Mr. Kostesky,

"for a $60.00 per year fee, we could very easily be classified as a

primary grain elevator and be exempted (sic) from these regulations."

Mr. Kostesky explains that employees are supplied with hand held lamps

because they are required to see into confined areas within the plant

and equipment. Also, there is no need for emergency lighting in his

plant since there has never been an incident where emergency lighting

would have been used. In addition to the above, employees do not

believe that emergency lighting would serve a useful purpose and since

they are not concerned, what is the purpose of installing emergency

lighting.

Submission for the employees

The submission of Mr. Wiebe was short and to the point. He stated :

"As the representative for Farmer_s Co-op Seed Plant employees, I

have spoken to the other employees regarding the installation of

emergency lighting. The employees do not feel that it is necessary

for emergency lighting to be installed, as they all carry hand held

lighting devices and this is not an area open to the general public.

Since the employees carry lighting devices they do not feel they are

at risk because there is no affixed emergency lighting in the

plant."

Decision

The issue to be decided in this case is whether the seed cleaning plant

located at Rivers, Manitoba is, for the purpose of section 6.10 of

Part VI (Levels of Lighting) of the Canada Occupational Safety and

Health Regulations (hereafter the Regulations), a primary grain

elevator as defined in the Regulations. The provisions of interest in

this case are subsections 6.10(1) and (2) of the Regulations. They

provide:

6.10 (1) Emergency lighting shall be provided to illuminate the

following areas within buildings:

(a) exits and corridors;

(b) principal routes providing access to exits in open floor

areas; and

(c) floor areas where employees normally congregate.

(2) Except in the case of a primary grain elevator in which hand-

held lamps are used for emergency lighting, all emergency lighting

provided in accordance with subsection (1) shall

(a) operate automatically in the event that the regular power

supply to the building is interrupted;

(b) provide an average level of lighting of not less than 10 lx;

and

(c) be independent of the regular power source.

A reading of subsection 6.10(1) of the Regulations informs us that, as

a rule, emergency lighting is required in designated areas of all

buildings. The exception provided by subsection 6.10(2) above is

highly specific. Only primary grain elevators, as defined in the

Regulations, where hand held lamps are used as emergency lighting,

are not required to meet the requirements for emergency lighting

specified by that provision. Therefore, hand held lamps are deemed to

be emergency lighting and, as a result of the exception, primary grain

elevators do not have to follow the same rule that is applicable to all

buildings.

A primary grain elevator is defined at subsection 6.1 of the

Regulations as follows:

"primary grain elevator" means a grain elevator the principal use of

which is the receiving of grain directly from producers for storage

or forwarding; "

Therefore, in considering the definition above, the question I need to

answer is as follows: What is the principal use of Mr. Kostesky's

plant? Is it the storage [or forwarding] of grain2 or is it primarily

seed cleaning? The adjective "principal" is defined by the Concise

Oxford Dictionary, eight edition, to mean: 1. first in rank or

importance; chief. 2. main, leading. Consequently, I interpret the

expression "principal use" to mean that, while a primary grain elevator

may engage in secondary operations, its most important or main purpose

for existing must be the storage or forwarding of grain received

directly from producers.

__________

2 In section 2 of the Canada Grain Act, grain is defined as follows:

"grain" means any seed named in Schedule I or designated by regulation

as a grain for the purpose of this Act;

At the primary grain elevator, as defined in the Regulations, the

grain, which may contain other types of seeds, soil and other unwanted

products, was brought to the elevator by or for the producers, unloaded

at ground level, weighed and finally raised mechanically to the top of

the elevator where it was directed into an appropriate bin for storage

or for forwarding primarily by train. The employee (not several

employees) in attendance at the elevator would practically never have

to enter the elevator to operate equipment or machinery since there

were none. He/she would very seldomly have to access the top of the

elevator, except maybe for maintenance purposes or in other exceptional

circumstances. Another characteristic of the existing primary grain

elevator was that, since the elevator was constructed primarily to

store grain in bins, there were no exits or corridors as mentioned in

the direction. There were also no routes providing access to exits in

open floor areas and neither floor areas where employees normally

congregate. Therefore, the principal use of the primary grain

elevator, as defined in the Regulations, was truly the storage or

forwarding of grain received directly from producers, and practically

nothing else.

While grains are also received at the seed cleaning plant for

forwarding, this is not the principal use of the plant. The principal

use of the seed cleaning plant is to carry out the operation of

cleaning the grains received directly from producers ( I am led to

believe this is the only source) and then forwarding the seeds, not the

uncleaned grains, to their destination. Evidently, the principal use

of a seed cleaning plant is to carry out the operation of cleaning and

processing of the grain to segregate and produce usable seeds. The

primary grain elevator, as described in the previous paragraph, could

exist without any cleaning operation taking place whereas the seed

cleaning plant could not exist without carrying out its principal

activity, which is the cleaning and processing of the various grains.

I am being asked to extent the exception for emergency lighting to

Mr. Kostesky's seed cleaning plant on the basis that the activities

occurring at the plant can hardly be distinguished from those occurring

at a primary grain elevator. That may appear to be so by today's

standards however, the specialized activities taking place within the

seed cleaning plant require the use of machinery, equipment and devices

which fall outside the scope of a primary grain elevator as defined in

the Regulations. Mr. Kostesky's expanded interpretation of a primary

grain elevator introduces another "principal use" of a building which

is not contained in the definition of primary grain elevators with the

consequence that the safety and health of employees at work would be

compromised, notwithstanding the submission of Mr. Wiebe or

Mr. Kostesky on this point.

Mr. Kostesky acknowledged that his plant is not classified under the

Canada Grain Act as a primary grain elevator. This, in my view, is

indicative that the plant is not a primary grain elevator. That, in

itself, is sufficient to justify the direction of the safety officer

since the definition of primary grain elevator is taken directly from

that Act3.

Other differences have emerged between a primary grain elevator and at

a seed cleaning plant. For example, according to the submission of

Mr. Kostesky, if there is one thing the seed cleaning plant does not

do, it is the storing of the grain inside the plant. Mr. Kostesky

stated that:

"Primary grain elevators provide storage for grain within their

facilities. Our facility only holds grain during the cleaning

operation, storage is provided outside of the plant itself which is

inherently safer because grain is not in the plant within a confined

facility."

That difference is crucial, in my opinion, because the principal use of

a primary grain elevator, as defined in the Regulations, is the storage

[or forwarding] of grain.

Finally, the allegation that Mr. Kostesky could obtain a primary grain

elevator license is interesting but does not convince me that the seed

cleaning plant necessarily becomes a primary grain elevator as a result

of that prospective classification. In any event, the seed cleaning

plant is not classified as a primary grain elevator and, in the

eventuality that it does, the safety officer may have to react

accordingly at that point in time.

The bottom line in this case is that, in my opinion, the work place

operated by Farmers Co-op Seed Plant Ltd. located at Rivers, Manitoba

is not a primary grain elevator as defined in the Regulations. For all

the above reasons, I HEREBY CONFIRM the direction issued under

subsection 145(1) of the Canada Labour Code, Part II on January 5, 1996

by safety officer Terry McKay to Farmers Co-op Seed Plant Ltd.

Decision rendered on June 4, 1996

Serge Cadieux

Regional Safety Officer

__________

3 In subsection 6.1(1) of the Canada Occupational Safety and Health

Regulations, the expression "primary grain elevator" is used and defined

whereas in the Canada Grain Act, the expression "primary elevator" is

used and defined. Both definitions are essentially the same.

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE PART II -

OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

On April 5, 1995, the undersigned safety officer conducted an

inspection in the work place operated by Farmers Co-op Seed Plant Ltd.,

being an employer subsect to the Canada Labour Code, Part II, at

Rivers, Manitoba, the said work place being sometimes known as Farmers

Co-op Seed Plant.

The safety officer is of the opinion that the following provisions of

the Canada Labour Code, Part II, is (sic) being contravened:

1. Paragraphs 125(n)(o) of the Canada Labour Code, Part II, (Part

II) and subsection 6.10(1)(a) of the Canada Occupational Safety and

Health Regulations (COSHR).

There is no emergency lighting in the exits and corridors of the

seed cleaning plant.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of

the Canada Labour Code, Part II, to terminate the contraventions no

later than January 26, 1996.

Issued at Winnipeg, this 5th day of January 1996.

Terry McKay

Safety Officer #350

To: Farmers Co-op Seed Plant Ltd.

Box 579

Rivers, Manitoba

R0K 1X0

SUMMARY OF DECISION OF REGIONAL SAFETY OFFICER

Decision No.: 96-011

Applicant: Farmers Co-op Seed Plant Limited

Respondent: Employee Safety and Health Representative

KEYWORDS:

Primary grain elevator, seed, exception, emergency lighting, principal

use, Canada Grain Act, storage.

PROVISIONS:

Code: 125(n),(o)

Regs: 6.1, 6.10(1), 6.10(2)

SUMMARY:

A direction was given to the above named applicant for failing to

provide emergency lighting in the plant. The owner argued that since

his plant was for all practical purposes a primary grain elevator, he

should be excepted from the fixed emergency lighting requirements. The

Regional Safety Officer found that the plant was not a primary grain

elevator as defined in the Regulations and CONFIRMED the direction.