Archived - Decision: 99-007
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 given by a safety officer

Decision No.: 99-007

Applicant:North East Air Services

Brantford, Ontario

Represented by: Carolyn Forbes

Respondent: Chris Leonard

Safety and Health Representative

Mis-en-cause: Paul Danton and Rod Noel

Safety Officers

Human Resources Development Canada

Before:Serge Cadieux

Regional Safety Officer

Human Resources Development Canada


A telephone conference was held with the parties and the safety officers on February 11, 1997 to discuss the urgency in hearing this case. An oral hearing was then held in Brantford, Ontario on February 17, 1997 to review the directions.


Subsequent to the hearing, Ms. Forbes complained that the hearing should be null and void because she was not provided with essential material prior to the hearing and therefore she was unable to prepare a complete defense.Records obtained from Canada Post confirmed that the material in question had been hand delivered to her office by Priority Post and that she had received and personally signed for the material prior to noon the day before the hearing. Ms. Forbes has yet to accept responsibility for signing for the material on the day prior to the hearing. Notwithstanding the above, on March 2, 1999, I granted Ms. Forbes an extension of time to file additional submissions with the Office of the Regional Safety Officers in order to ensure the fairness of the process.



Background

On January 26, 1999, safety officer Rod Noel from Human Resources Development Canada (HRDC) and safety inspector Lynn Presseau from the Ontario Ministry of Labour (MOL) attended the work place of North East Air Services at the Brantford airport in response to an anonymous safety related complaint made to the MOL. They entered the building without making an appointment and were met by the office manager, Ms. Corolyn Forbes who, according to safety officer Noel’s report, ordered them off the property almost immediately.

Safety officers Noel and Presseau contacted their respective managers.It was decided that safety officer Noel would return to the premises the next day accompanied by another HRDC safety officer, Mr. Paul Danton, to continue the investigation of the complaint.

On January 27, 1999, both HRDC safety officers arrived at the work place around 8:30 a.m. Neither Ms. Forbes nor the owner, Mr. Parchewsky, had arrived at this time. The officers spoke to some employees in the meantime and began to tour the work place. Officer Danton then received a telephone call from Ms. Forbes who informed him they had no right to be there without a previous appointment. She claimed that Mr. Mills, the officers’ manager, had informed her that they would only come at first to do a jurisdiction check. An OPP (Ontario Provincial Police) Constable, who had been called by the employer, arrived shortly thereafter at the work place.

Upon the arrival of the owner and Ms. Forbes, the Constable and both safety officers went with Ms. Forbes to her office. Officer Danton explained, with his certificate of identification in hand, who he was and the purpose of his presence. According to safety officer Danton’s report, “the Cst. … indicated to her that she must cooperate, and allow the safety officers to do their job.”

Following the Constable’s departure, the safety officers informed Ms. Forbes they wished to meet with her to begin a check of records. The safety officers reported that Ms. Forbes refused to cooperate and accused them of harassing her. She threatened to report them to their boss.

Given the alleged problems that the safety officers encountered with Ms. Forbes, it was decided that the investigation would be completed in the presence of two OPP officers. It was also decided that only the two HRDC safety officers would attend the work place. The MOL had decided that its inspector would not be involved with the on site inspection.

The safety officers returned to the work place around 2:30 p.m. on Monday February, 1, 1999. In the presence of the owner, Mr. Parchewsky, officer Danton, who was accompanied by an OPP officer, placed Danger tags[1] on various items of the shop floor while officer Noel who was also accompanied by another OPP officer was video taping the area. Mr. Parchewsky was very upset with the placing of tags.

Subsequently to the tagging phase of the investigation, safety officer Danton, accompanied by his police escort, informed Ms. Forbes that he had “tagged out” items on the shop floor and indicated to her that he needed to speak with her to discuss in detail the written directions that were to be given to her. The attached directions (APPENDIX I to V) were given to Ms. Forbes. The safety officers left the premises around 3:00 p.m..


The Telephone Conference

On February 10, 1999, the Office of the Regional Safety Officer received a request to have five directions issued to North East Air Services reviewed. On February 11, 1999, another package was received which included a detailed description of a formal harassment complaint lodged by Ms. Forbes against both safety officers involved in the inspection of the company. Also included in the package were signed complaints made by Mr. Joseph Gabura, Director of Maintenance at the facility and by Mr. Daryl Gilbert, an employee of the company.

I decided it was necessary to proceed expeditiously in this case given the nature of the complaints and of the directions. The complaints were to the effect that safety officers harassed the employer and the workers, abused their authority and issued directions for the purpose of “…shutting down the work place”.


In a telephone conference at which participated Mr. Trevor Mills, the safety officers, Ms. Forbes and Mr. Leonard, I explained that if I were to conclude, during the course of the review, that the safety officers entered the premises of North East Air Services in accordance with the law and that they had not abused their authority in issuing the directions, I would leave the complaint of abuse to be handled by the Department and address myself only to the substance of the directions as I am required to do so under section 146 of the Canada Labour Code, Part II (hereafter the Code).


The opening statement

Ms. Forbes

Ms. Forbes provided an opening statement at the beginning of the hearing and later testified on her own behalf. I retain the following facts from her statement and testimony.

Ms. Forbes asserted that the misconduct of the safety officers tainted their entire inspection and what they did at the facility. Their objective was to retaliate against Mr. Noel being ejected the day before.They issued directions not because of immediate hazards to employees but because of retaliation. Each of the direction could have been issued under the Voluntary Compliance Policy of the Department which require graduate measures for non-compliance.

Ms. Forbes stated that officer Noel failed to identify himself, failed to identify the person who was with him, that he acted aggressively and was ejected as a result.

Ms. Forbes added that the company did not know they were subject to the Canada Labour Code. She acknowledged the company may not have followed the Code in their ignorance but have adhered to its explicit policy objective. The 18 years of existence of the company without accidents, other than one minor injury, shows it has met that objective. Ms. Forbes also addressed herself extensively to the Department’s compliance policy.

Ms. Forbes also took exception to the ’’offensive’’ phrase found in each direction which states ‘’…the said work place being sometimes known as North East Air Services.’’ She indicated that this phrase is an improper reference and requested to have it removed from each direction.

Mr. Leonard

Mr. Leonard indicated that in the number of years he worked at North East Air Services, he never had any concerns for his health and safety.He also stated that he agreed with Ms. Forbes that the officers did not act in a proper manner as they should have when they came into the facility.


REVIEW OF DIRECTIONS

I must first review the direction (APPENDIX I) issued by safety officer Noel to determine whether the officer entered the premises in a manner that accords with the law and whether the alleged misconduct of the safety officers is substantiated.Each direction will then be reviewed in turn, except for a request made by Ms. Forbes that applies to all directions. The submissions of the employer are to be considered as including the submissions of Mr. Leonard.

Mr. Leonard indicated he is in full agreement with the employer in regards to the submissions made.

Request for Review that Applies to Each Direction

Ms. Forbes has requested the Regional Safety Officer rescind from all directions the reference, which she finds to be offensive, to ‘’…the said work place being sometimes known as North East Air Services.’’ No reason was provided for this position or indication of the nature of potential damage. I have no reason to believe this phrase is, in any way, offensive. I do not believe the employer is aggrieved by this reference and I have decided there is no justification to pursue this issue further. For these reasons, I HEREBY CONFIRM this portion of each direction issued by safety officers Rod Noel (APPENDIX I) and Paul Danton (APPENDIX II TO V) to North East Air Services.


DIRECTION 145(1) DATED
JANUARY 26, 1999 - APPENDIX I

The said safety officer, and an Ontario Ministry of Labour Industrial Inspector, Lynn Presseau accompanying the said safety officer were refused access to the work place by Carolyn Forbes, Manager and Ernie Parchewsky, owner.


Testimony of Mr. Trevor Mills, District Manager


Mr. Mills, HRDC manager to safety officers Rod Noel and Paul Danton, stated that the situation with North East Air Services was brought to his attention by officer Noel. He said that officer Noel informed him he had been ejected from the company and indicated he believed that leaving the premises was in the interest of his own safety.Mr. Mills later received a call from Ms. Forbes who indicated her dissatisfaction with officer Noel having arrived at her business unannounced. She alleged that officer Noel and the officer from the MOL had acted inappropriately.

Mr. Mills informed Ms. Forbes that officer Noel and another safety officer would return the next day to continue what had originally been set out to do. He also indicated that the officers would be clarifying the jurisdiction and that they would probably expect to have a tour or walkabout inspection to determine the nature of the business.

On January 27, 1999, officers Noel and Danton arrived at the premises. They attempted to follow through on their investigation of the work place. Ms. Forbes called Mr. Mills and complained that the officers had arrived but, given that she and the owner had not yet arrived at the work place, she would prefer they wait for her to arrive. She also advised Mr. Mills that the OPP had been called and that the two officers had been met by the OPP in the parking lot.

Mr. Mills opined that when safety officers arrive at premises, they are expected to identify themselves, if need be with official identification cards in their possession, and state the purpose of their visit. He added that since Ms. Forbes had already stated emphatically during the initial contact with the provincial ministry that she felt the company came under federal jurisdiction, they assumed jurisdiction as a result of that statement.


In closing Mr. Mills indicated that inspections are not normally announced in advance and that it is the safety officer’s decision to determine how the investigation (or inspection) is to be conducted. There was a complaint and they acted on it firstly to decide the jurisdiction and then to look for infractions.


Safety Officer Noel’s Position

The follow-up to an anonymous safety related complaint was assigned to safety officer Rod Noel on January 26, 1999. The safety officer had already made arrangements with inspector Lynn Presseau of the MOL to look into another company where jurisdiction was also an issue. It was jointly decided to look into the North East Air Services case in the afternoon. The safety officer confirmed with his manager that it was appropriate to visit this site and indicated to him there were safety concerns raised and that he had his own concern with the jurisdiction of this company given the nature of the activities of the company in rebuilding and repairing planes.

Both officers entered the building, walked through a relatively dark area, spoke to a worker inside who walked them to the manager’s office i.e. Ms. Forbes. The officers walked in. Ms. Forbes was sitting at her desk. Officer Noel introduced himself by name and indicated he was a safety officer with the federal “Department of Labour”. He added he was accompanied by inspector Lynn Presseau from the provincial Ministry of Labour. Officer Noel stated he said to Ms. Forbes that they were at her facility to discuss some safety concerns and because they have some questions about the jurisdiction of the company.

The safety officer testified he and inspector Presseau provided Ms. Forbes with business cards which she accepted.The first reaction of Ms. Forbes was, according to safety officer Noel, that she stood up and asked ‘’Don’t you make appointments?’’ His reply was ‘’No, it’s not our policy to make appointments.’’ Ms. Forbes apparently replied ‘’We’re federal, the Ministry of Labour has to leave. They’ve got no right here.’’ After re-advising her of the reason for their presence, safety officer Noel reports that Ms. Forbes was insistent ‘’You both have to leave.’’ She walked towards the safety officer and directed her attention more particularly to inspector Presseau saying ‘’You have no right here. You are from the provincial Department of Labour. You have to leave.’’ Ms. Forbes inquired as to who was officer Noel’s manager and informed him she would call him.

While officer Noel suggested to Ms. Forbes that it may be helpful to discuss this situation, she repeated they had to leave.Ms. Forbes was informed of sections 142 and 143 of the Code which require the employer to cooperate with the safety officer. Inspector Presseau had her notebook out and was making notes.

Ms. Forbes was saying to inspector Presseau ‘’Stop making notes, I didn’t tell you you could make notes.’’ As officer Noel presented his copy of the Code to Ms. Forbes to have her look at the referred sections, she asked the officer to back away because he was standing too close to her. The officer stepped back and suggested Ms. Forbes consult her counsel about their presence.

Officer Noel stated that Ms. Forbes was confronting inspector Presseau who backed out of the office with Ms. Forbes following her. He overheard Ms. Forbes shouting at him saying she would have someone throw him out. The owner walked in the office and told officer Noel he had to leave. Both officers retrieved to their vehicles which were parked in the parking lot and proceeded to call their respective managers.

In closing, safety officer Noel stated that when he proffered his Code to

Ms. Forbes, he explained that he advised her that sections 142 and 143 of the Code require that she provide the officers with cooperation and he verbally directed her to cooperate under those provisions. The safety officer acknowledged that Ms. Forbes may not have heard him because she was so intent on inspector Presseau leaving the office.

Safety officer Noel indicated that the above all occurred within the span of seven to eight minutes.


Position of Ms. Forbes

Ms. Forbes testified that about two years ago, a pilot of another company assaulted her in her office.She explained that ever since this incident, she has much difficulty with people barging in her office. She also indicated she has had heart surgery last May and everyone in the company understands that this kind of stress is very dangerous to her.

Ms. Forbes alleged that Mr. Noel was lying throughout his statements.She claimed that officer Noel never introduced himself nor Ms. Presseau. As she asked whether she could help them, Ms. Forbes stated that officer Noel blurred something out to the effect that he was from Human Resources to do an investigation. She explained that, to her, a reference to Human Resources is a reference to employment.

Ms. Forbes stated the only identification produced by safety officer Noel when he and inspector Presseau initially arrived was a business card of his and he did not at that time identify the other person. Ms. Forbes asserts that the safety officer never said he was there to clarify jurisdiction but said he was there to perform an inspection of their facility. She testified that the safety officer continually referred to an investigation and not to an inspection.

Ms. Forbes stated that officer Noel may have verbally directed her to cooperate but in the midst of the yelling and the screaming at twelve inches away from her face, she said she would not hear the words but only the aggression.Furthermore, when she turned to ask whether she could help them, Ms. Forbes asserts that the safety officers did not have their hard hats on, they were in their hands and that, according to her, does not qualify as identifying oneself properly.

In response to my query for clarification as to whether she specifically asked the safety officers for identification, Ms. Forbes replied that she did because she did not know who they were at that point.However, officer Noel responded that when he gave Ms. Forbes his business card, she had no time to question his identity, she very specifically said ‘’Who is your manager?’’ and actually attempted to make a phone call. The officer added that he is always prepared to provide photo identification on request. However, he said it was not requested.

During the cross-examination of the safety officer, Ms. Forbes expressed concern about the authority of the safety officer to act on an anonymous complaint.In reply the safety officer explained they respond to all complaints and that the Code does not mention anonymous complaints.



Position of Inspector Presseau - MOL

Ms. Presseau is a safety inspector with the Ontario Ministry of Labour (MOL).She confirmed that she and officer Noel had visited another work place on the morning and that it went very well. She agreed to visit the work place of North East Air Services and confirmed with her manager it was appropriate to do this. They proceeded to go in that place. Ms. Presseau stated that as they walked in she had her hard hat on. She clarified she does not usually have the hat on unless she knows it is required to have it on. Both safety officers had agreed prior to entering the place to wear the hat as a form of identification. Officer Noel had his hard hat on as well.

They proceeded to the manager’s office after asking someone where the office was.They walked in the office. Inspector Presseau stated that she had her notebook and business cards with her. She had a business card in her hand. Officer Noel was ahead of her and he introduced himself. He then turned to her and introduced her by saying “This is Lynn Presseau from the Ministry of Labour. She is a safety inspector with them.”

While she did not know at that moment her name, the lady sitting across from her proceeded in saying basically - The Ministry of Labour has no jurisdiction here, we’re a federal work place, we have federal licenses and she started yelling to get out of the building.Ms. Forbes, as it turned out, was a distance away from inspector Presseau, being on the other side of the office, and officer Noel was between both women.

Inspector Presseau recalls officer Noel talking about the direction he said he gave to Ms. Forbes.She does not recall whether officer Noel had the book in his hands although she recalls that he had the book with him. Ms. Forbes proceeded to walk towards inspector Presseau and making sure she was leaving. Inspector Presseau took notes which basically say that Ms. Forbes chased her out of the building saying “Get out of the building.” She was moving slowly out and was noting in her book what was going on as this is standard procedure for MOL inspectors.

At that time, Ms. Forbes wanted inspector Presseau’s notes which she explained she could not give her for confidentiality reasons.As Ms. Forbes chased her out of the building saying “Get out of the building”, inspector Presseau replied “I’m leaving”. Ms. Forbes said “I don’t see you leaving” and inspector Presseau replied again “I am leaving”. Ms. Forbes then asked a co-worker or a part-owner to come over. At that point, inspector Presseau finished writing in her book and left the building.

Inspector Presseau explained that it is not standard procedure for MOL inspectors to produce their badge and identification unless they are asked for it. However, said inspector Presseau “If I am asked to produce it, I produce it.”

Ms. Forbes added the following comments to Ms. Presseau’s testimony. She commented that she is not in the habit of checking people’s hat to know who they are. By the time she turned around, both were holding their hat in their hands near their chest. Ms. Presseau might have had her business card in her hand but did not give it to her until she asked for some identification. Neither of them ever used the word jurisdiction. Ms. Forbes stated that she asked inspector Presseau to leave the building because she found it objectionable that someone who, she was unsure who they were, were writing down everything she said. She asked to stop writing and inspector Presseau replied “No” to what Ms. Forbes replied “Well, then, you’ll have to leave”. Since she would not leave, Ms. Forbes said she did raise her voice since she wanted her out of her place. She said loudly she would have to leave. Ms. Forbes also said she found it intimidating to have someone write everything one says without knowing if they have the authority to do so. She ended her comment by stating that when inspector Presseau claimed that officer Noel identified himself, all he said according to her was “I’m from Human Resources Development Canada and I’m here to do an inspection”.

Again, Mr. Leonard had no questions for Ms. Presseau.

Reasons for Decision

The issue to be decided in this case is whether the direction given to North East Air Services is needed in the particular circumstances of this case.To decide this issue, I must consider whether safety officer Noel acted in accordance with the Canada Labour Code, Part II (hereafter the Code) when he attended the business of North East Air Services and when he issued the directions?

In regards to whether safety officers must announce their visit or make an appointment prior to attending a work place, I would refer to subsection 141(1) of the Code which provides as follows:

141 (1) A safety officer may, in the performance of the officer’s duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may…

(my underlining)

Subsection 141(1) of the Code does not require a safety officer to announce in advance his/her visit or to make an appointment to attend a work place.In fact, there may be circumstances where it makes more sense for a safety officer to arrive unannounced to obtain an unaltered view of the work place. The only restriction is for the safety officer, while performing his/her duties under the Code, to enter a work place “…at any reasonable time” which I interpret to mean to take into account the circumstances and the normal business hours of the company. While I was prepared to hear submissions as to why, in this case, the visit by the safety officers was not made “at a reasonable time”, no evidence was tendered to support that such circumstances prevailed at the time of the safety officers’ intervention. I am therefore satisfied that the safety officers acted within their authority when they entered the premises of North East Air Services during day time work hours to carry out their duties in this case.

Similarly, the applicable provision to resolve the issue of identification is found at subsection 141(2) of the Code. It provides:

141 (2) The Minister shall furnish every safety officer with a certificate of the officer’s authority and on entering any work place a safety officer shall, if so required, produce the certificate to the person in charge of that work place. (my underlining)

141 (2) Le ministre remet à l’agent de sécurité un certificat attestant sa qualité, que celui-ci présente, sur demande, au responsable du lieu où il se prépare à entrer. (my underlining)

Subsection 141(2) above requires the safety officer to produce the certificate “…if so required…” which I interpret to mean, according to the French version which has equal force in law, that a request must be made (“…sur demande…”) to the safety officer in question to produce the certificate. Therefore, the question to be answered is whether Ms. Forbes asked the safety officers to produce some official identification. In my opinion she did not for the following reasons.

·Two duly designated officers, both from different jurisdictions, carrying out a duty under their respective legislation testified they were not asked for official identification. The safety officers stated that they have no reason not to produce a certificate of identification: if it is asked for, they produce it. That is the standard procedure to be followed however, it is not standard procedure to automatically produce official identification. Interesting enough, Ms. Forbes has never said that the safety officers refused to produce the certificate of identification when she claims to have asked for identification. The submission is to the effect that Ms. Forbes asked for identification but no official identification was produced. On the basis of the testimonies, I am of the opinion that a request for official identification was not made by Ms. Forbes.

·I believe that when the safety officers attended North East Air Services, they were determined to carry out their duties under the Code and did so within the boundaries of the Code. On the balance of probabilities, I am satisfied with the version of events reported by the safety officers because I find their version to be consistent with their statutory powers and duties. No evidence has been submitted that would lead me to believe the officers acted improperly in this case.

·It is undisputed that safety officer Noel introduced himself althoughMs. Forbes claims she did not understand what was being said. However, Ms. Forbes explained later in her testimony that a reference to Human Resources Development Canada is understood by her to mean a reference to employment. Therefore, I must conclude that safety officer Noel did introduce himself as he testified and that Ms. Forbes clearly heard him. I infer from her testimony that, as a minimum, she understood they were government officials.

·From the foregoing, I suspect that Ms. Forbes also knew these two persons were labour inspectors given they had hard hats with them and introduced themselves as government officials. When I asked Ms. Forbes whether she specifically asked the safety officers for official identification, she replied that she did because she …did not know who they were at that point. I give little weight to Ms. Forbes’ answer because, in my opinion, she knew that these two persons were government officials. Furthermore, if she honestly did not know who they were as she claims, then she had no reason to ask a potential contractor, construction employee or other similar person wearing a hard hat for official identification, at least not at first sight. Normally, one would not ask a visitor for official identification but would ask the person, in a very general and casual manner, to identify him/herself. In such a case, a business card would be sufficient. I understand that Ms. Forbes did ask the safety officers if she could help them. I believe this is probably how Ms. Forbes approached her visitors and when she found out that one of them was a provincial inspector, she abruptly terminated the introduction and reacted promptly, rudely and aggressively towards that person.

I am satisfied that the safety officers entered the premises of North East Air Services with their hard hats on, introduced themselves with business cards, were not asked for official identification and were met by Ms. Forbes with an unusual confrontational attitude. I am satisfied that Ms. Forbes was upset at the officers because they had not made a prior appointment and, most important, because a provincial labour inspector was present.

I am particularly concerned by the fact that Ms. Forbes ordered Ms. Presseau to leave the property knowing that she was accompanying safety officer Noel. In my opinion, it was clear in Ms. Forbes’ mind that inspector Presseau was a labour inspector with the MOL and that she had no jurisdiction in her work place. She declared to the officers that North East Air Services was under federal jurisdiction and assumed Ms. Presseau had no right to be in her work place. However, ignorance of the law is not an excuse. Subsection 141(1) [2] of the Code lists the full range of powers of a safety officer. Paragraph 141(1)(c) provides that the safety officer can “be accompanied and assisted by such persons… as the safety officer deems necessary to carry out his duties;” Only the safety officer has authority to decide whether the presence of a person is necessary to carry out his/her duties under the Code. Safety officer Noel was accompanied by inspector Presseau from the MOL, he deemed her presence necessary to carry out his duties and therefore, Ms. Presseau had a right to accompany the safety officer. Ms. Forbes had no right to eject Ms. Presseau.

The manner in which Ms. Presseau was ejected is also very disturbing. Ms. Forbes acknowledged she raised her voice at Ms. Presseau and that in fact she was shouting at her because, as she stated, she was intimidated by the inspector taking notes. I believe that, rather than being intimidated, she was irritated and personally offended to see someone recording everything she was doing or saying and was not prepared to accept this behavior from anyone, let alone a provincial labour inspector who, in her mind, had no jurisdiction in her work place. This, in my opinion, angered Ms. Forbes who confronted Ms. Presseau at that point. For all practical purposes, she threw Ms. Presseau, and officer Noel, out of the building.

Ms. Forbes had no right to have the owner, Mr. Parshewsky, eject officer Noel. She was required by law to cooperate with the safety officer. On this basis alone, the direction is justified.

I also believe that safety officer Noel verbally directed Ms. Forbes on January 26, 1999, as he is authorized to do so under paragraph 145(1)[3] of the Code, to cooperate with him as he asserted he did. Ms. Presseau confirmed she heard the safety officer talk about the direction. The direction was given at an appropriate time given the circumstances, and was meant to secure the cooperation of Ms. Forbes. Ms. Forbes did not deny this has happen although she claims she has not heard the safety officer speaking in such a manner. Officer Noel acknowledges that Ms. Forbes may not have heard the direction as she was too busy ejecting Ms. Presseau, an action contrary to the law. The direction, as formulated, is valid and will be confirmed.

The issue of jurisdiction has taken on a life of its own in this case. However, whether or not the officers attended the work place of North East Air Services for the purpose of establishing jurisdiction cannot be construed as limiting their authority to intervene if a situation of danger is detected. In fact, once a safety officer has made up his mind that the business is under federal jurisdiction, he/she cannot turn a blind eye to a situation of danger. Subsection 145(2) of the Code places a mandatory requirement on the safety officer to take action if a situation of danger is known to exist. That provision reads:

145(2) Where a safety officer considers that the use or operation of a machine or thing or a condition in any place constitutes a danger to an employee while at work,

(a)the safety officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer immediately or within such period of time as the safety officer specifies

(i)to take measures for guarding the source of danger, or

(ii) to protect any person from the danger; and

(b)the safety officer may, if the officer considers that the danger cannot otherwise be guarded or protected against immediately, issue a direction in writing to the employer directing that the place, machine or thing in respect of which the direction is made shall not be used or operated until the officer’s directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.

(my underlining)

Clearly then, the safety officer has no discretion.If the officer is aware of or detects a situation of danger in a work place, he/she must take action to protect the employees from the danger. The safety officer had been made aware that employees were being required to work under very hazardous and potentially dangerous conditions. Under those conditions, the safety officers were justified to investigate a safety related “anonymous” complaint which, in passing, is just another type of complaint to be investigated.

As officer Noel returned to North East Air Services in the company of safety officer Paul Danton, they proceeded under section 141 of the Code to investigate the complaint. They were fully within the authority of the Code to take pictures, to question employees, to view records and to do just about everything Ms. Forbes objected to. As they attempted to do so, they were met with open defiance of authority. They required police assistance to carry out their duties, a most unusual situation, but even then Ms. Forbes challenged the safety officers’ right to be there and indicated to the safety officers they should leave. The allegations made by Ms. Forbes that the safety officers were yelling and screaming at her are so much out of character that I find them mostly unbelievable. I do note however that Ms. Forbes ejected Ms. Presseau in this manner.

I need not dwell longer on this issue. I am satisfied that the safety officers were acting within their authority under the Code when they issued the directions. I am satisfied they did not abuse their authority by issuing the directions under appeal. The direction given by safety officer Noel stands.

I do however acknowledge that Mr. Gabura and Mr. Gilbert wrote letters of complaint in support of Ms. Forbes allegations of harassment. I would leave these complaints to be investigated by the Department should it choose to pursue this matter further. It may be appropriate to determine whether these complaints are substantiated.

In any case, the law provides the employer with a fair process of review under section 146 of the Code if it feels aggrieved by a direction. This is exactly what I will do for the other directions under review.

Decision

For all the above reasons, I HEREBY CONFIRM the direction issued under subsection 145(1) of the Code, on January 26, 1999 by safety officer Rod Noel to North East Air Services.


DIRECTION 145(2)(a) and (b) DATED FEBRUARY 1, 1999 - APPENDIX II

The said safety officer considers that the portable wooden step ladder used in the work place to access the upper mezzanine work station, has rungs which are damaged, oil soaked, have saw cuts, are loose, and beyond repair, which constitutes a danger, at the work place.Reference is made to subsection 2.6, 3.2, and 3.11 of the Canada Occupational Safety & Health Regulations. And further the wooden ladder does not meet the standards in accordance with CSA Standard CAN 2-Z11-M81 (Portable Ladders).

At the hearing held in this case on February 17, 1999, Ms. Forbes requested that, in the interest of time, the issue of the ladder be abandoned. When asked why she was making this request, Ms. Forbes indicated that the issue of the ladder was not relevant because North East Air Services has taken the ladder out of the building They understood, after reading the Code, “why it doesn’t comply with it.”

Ms. Forbes added she did not wish to pursue the review of this direction but wished to have the other directions reviewed.This issue was left untouched and no arguments were submitted, either by Ms. Forbes or by Mr. Leonard, to challenge the validity of the direction. On this basis, I have no authority to review this direction further and thereby confirm it.

I would however say that the fact that I am confirming the direction does not mean that I am in agreement with the conclusion of the safety officer.I am merely observing that Ms. Forbes does not wish that I spend time reviewing this direction and that in the absence of evidence to challenge the validity of the direction, I am not disagreeing with the safety officer.

Decision

For all the above reasons, I HEREBY CONFIRM the direction issued under paragraphs 145(2)(a) and (b) of the Code, on February 1, 1999 by safety officer Rod Noel to North East Air Services.


DIRECTION 145(2)(a) and (b) DATED FEBRUARY 1, 1999 - APPENDIX III

The employer has failed to verify to the safety officer, that the one ton overhead crane has been installed, and is being maintained in a safe manner.The employer has failed to provide as required by the COSH regulation XIV section 14.20 written instructions on the inspection, testing and maintenance of the said crane.


Position of safety officer Danton

The safety officer explained that during his walkabout of the work area, he noticed an air hoist which he referred to as an overhead crane (photograph on file under D-6, 15/37).The officer described the concerns he had with the configuration of the hoist and its structural elements. He also indicated he had discussions with the parties present in the work area in question at which time he determined that the set-up, which appeared to be sitting only on top of a shelving unit, was the work of Mr. Parchewsky, the owner.

The safety officer established that Mr. Parchewsky was not a structural engineer and that he could not provide maintenance records simply because none existed.There were no records for the hoist, for its last servicing or for who would maintain that record. The safety officer indicated he was concerned with the whole configuration which appeared to be only sitting on top of a storage rack unit which did not appear to be secured in any way. The officers felt that this area was in fact a danger to the workers but not only workers in and around that area but also to the adjacent workers as well in relationship to what they saw.

Position of Ms. Forbes

It should be stated that Ms. Forbes has argued throughout her testimony that there was no situation in her work place that constituted an immediate threat to the safety of employees.Ms. Forbes stated that the metal beams supporting the hoist were welded together and to the metal racks by Mr. Parchewsky, a certified welder. She was concerned that the employer is required to prove that the configuration is safe whereas safety officers can declare it to be unsafe without being themselves structural engineers.

Reasons for decision

It is most interesting that Ms. Forbes addressed herself to the immediacy of the danger in her work place.I have addressed the concept of danger in Air Canada vs. Canadian Union of Public Employees, unreported decision No. 94-007(R), in which I wrote:


In order to answer these questions, I must consult the definition of the word "danger" in subsection 122(1) of the Code and apply this definition in light of the case law."Danger" is defined as follows:

(underlining added)

The courts have had many opportunities to interpret the scope of the term "danger".From this case law two extremely important points have emerged that have guided me in my decision.

The first point is that the danger must be immediate. Thus, the expression "before the hazard or condition can be corrected" has been associated with the concept of "imminent danger" that existed before the Code was amended in 1984. In Pratt, the Vice-Chairman of the Canada Labour Relations Board, Hugh R. Jamieson, wrote:

"...Parliament removed the word "imminent" from the concept of danger...but replaced it with a definition that has virtually the same meaning."

The second point I take from a large number of decisions is that the employee's exposure to the hazard or situation must be such that the likelihood of injury is obvious.Accordingly, the danger must be more than hypothetical, or there must be more than a small probability of its becoming a reality. The danger must be immediate and real, and no doubt must remain regarding its imminence.

A reading of the direction informs us that the safety officer was not so much concerned with the danger that the air hoist represented for the employees as he was with the absence of records that would ascertain the equipment was safe.While the testimony of the safety officer on the other hand concerns danger, there was no information in his possession to indicate that unless he intervene immediately, while he is present at the work place, that an employee would be injured before the hazard or condition can be corrected.

In fact, the air hoist had been used on numerous occasions in the past without any problems. The beams were welded by Mr. Parchewsky, a certified welder, to each other and to the shelving unit.The safety officer testified that he was uncertain whether the beams were welded together and to the shelving units. As it turns out, they were welded in the manner described above. The safety officer did observe an unusual configuration, one that may be unsafe. However, the safety officer did not observe and had no specific information indicating that something was about to happen due, for example, to the instability of the configuration during an actual lift, or the inability of the hoist to function safely, etc..

In my opinion, the safety officer was concerned that if the current configuration of the hoist was allowed to remain unchanged and used regularly, something would likely occur at some point in time.I would agree with the safety officer that the current arrangement of the hoist and the metal beams sitting on the shelving unit is hazardous and could eventually cause an injury. The safety officer was however addressing himself to a danger in the general sense of the term but he was not addressing himself to a danger within the meaning of the Code. The danger was hypothetical and prospective at best. Nonetheless, the current configuration of the air hoist does not ensure the safety and health of employees at work. To this extent, the employer is in contravention of the law.

The power to review a direction under subsection 146(3) of the Code requires that the Regional Safety Officer look at the same circumstances investigated by the safety officer and, if needed, vary the content of the direction.This does not mean that if the safety officer looked at whether a danger existed, I could conclude that the safety officer purported to look at whether the employer contravened a provision of the Code and issue a direction under subsection 145(1) of the Code for a contravention. That, in my opinion, would amount to exceeding my jurisdiction because it would require that I issue a new direction for a contravention, a power that was not given to the Regional Safety Officer under subsection 146(3) of the Code. Under that provision, I can only vary, rescind or confirm the direction under review which, in this case, is a direction for danger.

Hence, while I agree with the safety officer that the configuration of the air hoistconstitutes a contravention of the Code, I have no power to issue a new direction under subsection 145(1) of the Code for such a contravention. I therefore have no choice but to rescind the direction. This however does not preclude the safety officer from returning to the work place of North East Air Services to establish whether the employer is currently in compliance with the Code.

Decision

For all the above reasons, I HEREBY RESCIND the direction issued on February 1, 1999, under paragraphs 145(2)(a) and (b) of the Code by safety officer Paul Danton to North East Air Services.




DIRECTION 145(2)(a) and (b) DATED
FEBRUARY 1, 1999 - APPENDIX IV


The upper level mezzanine work area used by employees for fabric lay-up and gluing of aircraft structural components, presents a danger to employees due to unsafe flooring and damaged steel supports, lack of proper guard rails, and unsafe access and egress which is provided only by a portable wooden step ladder.The hazardous substances being used in this work area require significantly enhanced ventilation and fire hazard controls, which are not currently in place.

Position of safety officer


The detailed testimony and report of Mr. Danton are on record and will not be repeated here.However, I have retained the following facts from his testimony.

The safety officer explained that he observed a mezzanine work area that contains a work table, with a regular household fan located on it, and a considerable amount of storage of piping, racking, sheet metals, etc..At the end of the mezzanine, the safety officer noticed what appeared to be a natural gas heater system with a flame inside the system. Employees work at that work station on the mezzanine work area. Access to the mezzanine is by the wooden step ladder. One of the pillar supporting the mezzanine area was considerably bent as were other beams supporting the mezzanine and the metal storage unit identified as a quarantine area.

Rudimentary protection is provided on the mezzanine by the use of plastic and a metal wire fence attached to small metal posts and a wooden two by four frame.The safety officer observed that the flooring of the mezzanine, which is constructed of three quarter inch plywood, is buckling. While the safety officer was present, the heater was activated at times. At the time of the inspection, Mr. Leonard was working at the work table. He was in the process of using a product identified as Aircraft Finish. The label on the product reads: Danger, Flammable, Harmful or Fatal if Swallowed. Vapor Harmful. There was no ventilation other than the household fan on the work table. The safety officer observed another similar situation during his inspection. An employee, working within an enclosed area, was doing some repairs using fiberglass resins without ventilation. The safety officer also noticed a red fire extinguisher, free standing, near the mezzanine which indicated an inspection date of September 20, 1995.

Officer Danton observed officer Noel as he walked on the floor of the mezzanine and noticed that the plywood was lifting and separating. Officer Noel remarked that the flooring was soaked with oil, some of the wooden structure was broken and the flooring itself was broken. He also observed that there were no proper guardrails, that egress from the mezzanine was unsafe as only the wooden step ladder could be used, that they were using that area for fabric work and gluing of aircraft structure components without proper or adequate ventilation. The safety officer felt that the area required significantly enhanced ventilation coupled with fire hazard controls that were not in place.


Position of Ms. Forbes

Ms. Forbes stated that the mezzanine referred to by the safety officer is, in reality, a double deck storage unit. This unit has been used for the last eight years without problems. The area referred to as quarantine on that unit is only accessed by the owner to ensure employees do not use material that has not been approved by Transport Canada. The fabric work had been performed one or two days before the safety officers arrived. This is truly very intermittent work which is done only a few times a year. However, since the safety officers’ inspection, everything has been removed from that area and the work is now only carried out on the ground floor.

Ms. Forbes explained that the only test carried out by the safety officers was officer Noel jumping on the floor and officer Danton observing that the light fixture moved.The officers did not perform any calculations.

Ms. Forbes stated that two engineers from a consulting engineering firm in Brantford inspected the double deck storage unit.According to Ms. Forbes, the engineers said the “little” bends in the supports of the unit are insignificant. Also, the corrosion observed by the safety officers is caused by surface rust which does not affect the integrity of the unit. The engineers suggested some modifications to the railings, the metal supports and the flooring. In terms of weight, the engineers calculated that the material stored in the quarantine area posed no real problems to its intended use because of the nature of the material stored. Most of the material stored is made of aluminum which is light weight.

As for the fire extinguisher, Ms. Forbes stated they relied on the green indicator on the window of the fire extinguisher which indicated that it was fully charged. However, she did not realize they had to have it signed off every year.

Reasons for Decision

The direction informs us that the safety officer considers that a danger, as defined in the Code, exists to employees on the upper level “mezzanine” work area used by employees for fabric lay-up and gluing of aircraft structural components due to:

1. unsafe flooring and damaged steel supports and lack of proper guard rails,

2. unsafe access and egress which is provided only by a portable wooden step ladder.

3. The hazardous substances being used in this work area require significantly enhanced ventilation and fire hazard controls, which are not currently in place.

I must therefore address each element identified by the safety officer to determine whether each one constitutes a danger as defined in the Code.To do so, I will apply the same principles to the concept of danger that I have applied in the revision of the direction in APPENDIX-III regarding the one ton overhead “crane”.

1. unsafe flooring and damaged steel supports and lack of proper guard rails

There is no doubt that the floor of the “mezzanine” was in poor shape and that the metal structure was bent out of shape in a number of areas.However the safety officer did not observe or report any specific fact that would lead me to conclude that an employee was in immediate danger as a result of his observation. The flooring, the steel supports and the lack of proper guard rails clearly do not meet the requirements of the National Building Code or other provisions of Part II (Building Safety) of the Regulations. They are obvious dangers within the general meaning of the term but there was nothing indicating that unless the safety officers intervened immediately to protect employees, an injury would happen right there and then.

For example, when officer Noel jumped (!) on the floor of the “mezzanine”, he actually demonstrated at that point that there was no immediate danger to an employee who would have to walk on the same floor.The fact that the steel support beams of the “mezzanine” or of the shelving unit on the “mezzanine” may have dents does not mean the whole structure is about to fall. Also, the fact that the guard rails in place were clearly in contravention of the legislation is insufficient to declare that they constituted a danger within the meaning of the Code. There was no immediate danger of falling because some rudimentary guard was in place to protect employees from falling from the structure.

There is no doubt that the safety officers were acting in good faith when they issued the direction for danger. They were under constant pressure to make quick decisions given the lack of cooperation and the continuous interference of Ms. Forbes in the inspection. They erred on the side of safety and that is exactly what they are supposed to do. Nonetheless, I am of the opinion that the safety officers observed numerous infractions in this case but did not detect a situation of danger as defined in the Code. I will therefore vary the direction and remove from it the reference to “unsafe flooring and damaged steel supports and lack of proper guard rails.

2. unsafe access and egress which is provided only by a portable wooden step ladder

In the absence of arguments by Ms. Forbes respecting the wooden step ladder, I am confirming the findings of the safety officers respecting egress and access from the “mezzanine”. I will therefore ensure the direction reflects this.

3. The hazardous substances being used in this work area require significantly enhanced ventilation and fire hazard controls, which are not currently in place.

It has been established that Mr. Leonard was in the process of using a product identified as Aircraft Finish. The label on the product reads: “Danger, Flammable, Harmful or Fatal if Swallowed. Vapor Harmful.” It was also established that during the safety officers’ inspection, a natural gas heater system with a flame inside the system was activated a number of times in the immediate vicinity of the product. Given that safety officers were unable to carry out a thorough investigation of this situation because of Ms. Forbes’ continuous interference and her lack of cooperation with the safety officers in providing them with the required information to make an objective decision, I am satisfied that employees were likely to be injured as a result of a fire or an explosion before the hazard could be corrected. I am also satisfied that the absence of ventilation creates an immediate risk to the health of employees working at fabric lay-up using fiberglass products.

Ms. Forbes has adduced no evidence which would support a finding of no danger.The decision reached in this case is reasonable in the circumstances and reflects the safety officer’ need to make an objective decision immediately.

Furthermore, since I have concluded that a fire was imminent, a fire extinguisher dated September 20, 1995 is ineffective and represents in itself an immediate danger because it will, in all likelihood, malfunction during a fire and create a greater danger to employees.

The safety officer was, in my opinion, justified to take immediate action to prevent a serious accident from happening.I am therefore confirming this part of the direction.

Also, the Notice of Danger (danger tag) will remain until such time that the safety officers are satisfied that North East Air Services has complied with the direction.




Decision

For all the above reasons, I HEREBY VARY the direction (APPENDIX IV) issued on February 1, 1999, under paragraphs 145(2)(a) and (b) of the Code by safety officer Paul Danton to North East Air Services by removing from the direction that portion of the description of danger that reads as follows: “unsafe flooring and damaged steel supports, lack of proper guard rails, and

DIRECTION 145(1) DATED FEBRUARY 1, 1999 - APPENDIX V

Item #1: The employer has failed to post a copy of the Canada Labour Code, Part II at the work place as required.


Positions of safety officer Danton and Ms. Forbes

During his inspection, the safety officer asked Ms. Forbes if she had a copy of the Canada Labour Code and whether it was posted.Ms. Forbes answered she did not have a copy of it, that a copy of the Code was not posted but that an Internet copy was available.

Reasons for Decision

The absence of a copy of the Code and the fact that no copy was posted is a clear violation of sub-paragraph 125(d)(i) of the Code.There is little defense available in this case: either a copy was posted or it was not posted. Both Ms. Forbes and officer Danton confirmed that a copy of the Code was not posted.

Decision

For this reason, I HEREBY CONFIRM item #1 of the direction issued under subsection 145(1) of the Code on February 1, 1999 by safety officer Paul Danton to North East Air Services.


Item #2: The employer has failed to keep and maintain, and to provide to a Safety Officer, a current record of all hazardous substances used, handled or stored in the work place.


Positions of safety officer Danton and Ms. Forbes

The safety officer explained that when he asked Ms. Forbes for a record of all hazardous substances used in the work place, she produced a three ring binder identified on the front of it as M.S.D.S. (material safety data sheet). In verifying its content, the safety officer said

“A quick glance of that document which was rather large inside indicated that there were no current M.S.D.S. sheets in the binder, that the accuracy of the M.S.D.S. sheets in there were in question and that they could not in fact be matched up to some of the products that we visibly observed while conducting the inspection.”

Ms. Forbes replied that approximately two years ago the Fire Department conducted an inspection and she was shown by the fire chief how to organize the material safety data sheets for the products used in her shop. She stated she did put together a list which she acknowledged was not current. In fact, Ms. Forbes stated that she has a record of the substances used in her work place however she does not know for a fact whether the record is up to date. She also added that when officer Danton gave her a list of five products to be verified, she provided M.S.D.S. for each one. She also fails to understand what is meant by officer Danton’s statement that the accuracy of the M.S.D.S. was in question.

Reasons for decision

The applicable provision in this case, as specified in the direction, is section 10.3 of the Canada Occupational Safety and Health Regulations (hereafter the Regulations). It provides:

10.3 Every employer shall keep and maintain a record of all hazardous substances that, in the work place, are used, produced, handled, or stored for use in the work place, and may either keep and maintain such a record in the work place or keep and maintain a centralized record in respect of several work places, in one work place.

Section 10.3 requires the employer to “keep and maintain a record” of hazardous substances. The reference to hazardous substances in this provision is general in nature and includes controlled products but is not limited to these products. Therefore, this provision applies generally to all hazardous substances whereas the additional requirements for controlled products, such as the specific requirements for material safety data sheets, begin to apply at section 10.29 of the Regulations. While section 10.28 does require the employer to obtain a material safety data sheet if it is available from the supplier of the hazardous substance, there has been no submissions that Ms. Forbes failed to obtain the said document where it was available from the supplier.

A material safety data sheet is a document containing precise and detailed technical information about a hazardous substance. In reading the English version of section 10.3 above, a “record” can be interpreted as a series of material safety data sheets placed in an orderly, or disorderly, manner in a three ring binder. However, a reading of the French version of this provision is more restrictive since it uses the word “registre” which I interpret to be a written listing of all substances with specific information about each substance. Since no submissions were made regarding this distinction, I will not consider the interpretation to be given to a record as an issue in this case.

Section 10.3 above does not require that the material safety data sheets for hazardous substances be updated every three years. That is a requirement for controlled products. Evidently, many of the hazardous substances found in Ms. Forbes’ work place are controlled products subject to the requirements for controlled products. However, I am to review the application of section 10.3 of the Regulations to the circumstances of this direction. I am not to speculate on the intentions of the safety officer.

Ms. Forbes testified that she was able to provide documentation for the five products that were identified by the safety officer. However, during her testimony on the review of item #3 of this same direction, Ms. Forbes stated that her assistant, Mr. Leonard and another employee were making a comprehensive list of all products in the work place. They were cross-checking the products to the list . She stated:

“Until we get that done I cannot say whether everything was or was not current. But neither can the officers because they didn’t do a comprehensive list either.”

The safety officers, it should be noted, are not required by law to ascertain that each and every hazardous substance found in Ms. Forbes’ work place is recorded whereas the employer has that obligation under paragraph 125(e) of the Code which provides:


125. Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer,

(e) keep and maintain in prescribed form and manner prescribed safety and health records;

The bottom line here is that Ms. Forbes does not know whether she has a list or a record of all hazardous substances found in her work place. Ms. Forbes testified that the list of hazardous substances used in her work place is not current. She then added that it may be current but she does not know that for a fact. Section 10.3 of the Regulations also requires the record to be maintained. Evidently, Ms. Forbes does not maintain the list or record of all hazardous substances used in her work place since the safety officer established that many material safety data sheets could not be matched up to some of the products observed in the work place.

On the basis of this evidence, I am therefore satisfied that Ms. Forbes does not keep and maintain a record of all hazardous substances present in her work place. This part of the direction is confirmed however I will vary the direction to correct the reference to paragraphs 125(1)(a) and (b) of the Code. That reference should read paragraph 125(e) of the Code.

Finally, the direction also makes reference to the record not having been provided “to a Safety Officer”. The fact that the record in question “may” not have been provided to the safety officer is not an issue that can be resolved under section 10.3 of the Regulations. I understand the safety officers did not receive the full cooperation they were entitled to. Whether officer Danton required Ms. Forbes to produce the said record and whether she refused is unclear. This matter could have been addressed under sections 141 of the Code or, alternatively, sections 142 and 143. This was not the case. Since Ms. Forbes did produce some records and the safety officer did verify some of the material safety data sheets, I am giving Ms. Forbes the benefit of the doubt. The direction will also reflect this.

For all the above reasons, I HEREBY VARY item #2 of the direction issued under subsection 145(1) of the Code on February 1, 1999 by safety officer Paul Danton to North East Air Services by replacing the description of item #2 with the following description:

2. Canada Labour Code, Part II, paragraph 125(e) and Canada Occupational Safety and Health Regulation (COSH Reg.) X. Section 10.3

The employer has failed to keep and maintain a current record of all hazardous substances used, handled or stored in the work place.

Item #3: The employer has failed to appoint a qualified person to carry out a hazard investigation with regard to all hazardous substances found at the work place. During an inspection of the work place, a list of some of the products identified by the safety officer includes, but is not limited to, the following hazardous substances: Methyl Ethel, Keytone, Acetone, Epoxy Primer, Fiberglass Resine, Isocyanates, Lacquer thinners and hardeners, Varsol and other paint and related products used in fiberglass work and the preparation and painting of aircraft.

Position of officer Danton

According to safety officer Danton, Ms. Forbes did not feel she was required to conduct a complete inventory of the products she had in her work place because she was qualified in the area of W.H.M.I.S. (Workplace Hazardous Materials Information System) and she considered herself a W.H.M.I.S. instructor. The safety officer added that during their walkabout, they included in the direction a number of products that were not investigated in accordance with section 10.4 of the Regulations. Many of the material safety data sheets for the products they cross-referenced were outdated. The officer described many products he identified in the work place and for which a material safety data sheet was either missing or out of date.

Position of Ms. Forbes

Ms. Forbes denied she ever claimed to be a W.H.M.I.S. instructor.She said she had taken the course and was told that those who have taken the course can pass the information to others.

As noted in the review of item #2 of the direction above, Ms. Forbes is currently compiling a comprehensive list of all products found in her work place and feels she is complying with section 10.4 of the Regulations.When asked whether she had a written report to support her allegation that she was investigating the various hazardous substances, she replied she did not realize she had to keep up to date with all these products.

Reasons for decision

The issue to be decided in this case is whether the employer appointed a qualified person to carry out a hazard investigation, with regard to those hazardous products likely to endanger employees, as required by section 10.4 of the Regulations which provides:

10.4 (1) Where there is a likelihood that the safety or health of an employee in a work place is or may be endangered by exposure to a hazardous substance, the employer shall, without delay,

(a)appoint a qualified person to carry out an investigation in that regard; and

(b)for the purposes of providing for the participation of the safety and health committee or safety and health representative, if either exists, in the investigation, notify either of the proposed investigation and of the name of the qualified person appointed to carry out that investigation.

2) In an investigation referred to in subsection (1), the following criteria shall be taken into consideration:

(a)the chemical, biological and physical properties of the hazardous substance;

(b)the routes of exposure to the hazardous substance;

(c)the acute and chronic effects on health of exposure to the hazardous substance;

(d)the quantity of the hazardous substance to be handled;

(e)the manner in which the hazardous substance is stored, used, handled and disposed of;

(f) the control methods used to eliminate or reduce exposure of employees to the hazardous substance;

(g)the concentration or level of the hazardous substance to which an employee is likely to be exposed;

(h)whether the concentration of an airborne chemical agent or the level of ionizing or non-ionizing radiation is likely to exceed 50 per cent of the values referred to in subsection 10.19(1) or the levels referred to in subsections 10.26(3) and (4); and

(i)whether the level referred to in paragraph (g) is likely to exceed or be less than that prescribed in Part VI.

The list of products added to the direction is useful to show that the products exist and that no hazard investigation has been carried out for those products. The investigation to be carried out must take into consideration the criteria listed under subsection (2) above. The criteria addresses several technical aspects of the hazardous substances that only a qualified person can address. It should be noted that only those hazardous substances that may endanger the safety and health of employees are to be investigated. The employer will need to determine which substances are to be investigated however, as a minimum, the list of products identified in the direction can be used as a guide.

Ms. Forbes is not qualified, and I believe she does not claim to be a qualified person, to carry out an investigation of all hazardous products that may endanger employees at work.The term “qualified person” is defined at section 1.2 of the Regulations and “means, in respect of a specific duty, a person who, because of his knowledge, training and experience, is qualified to perform that duty safely and properly;”

It is evident that the employer, in this case, Mr. Parchewsky, did not appoint any person who had sufficient knowledge, training and experience to carry out an investigation of those hazardous substances found in his work place which may endanger the safety and health of his employees.I need only look at what Ms. Forbes is doing to comply with section 10.4 of the Regulations. She is compiling a list of products found in her work place and cross-checking it with the material safety data sheets in her possession.

Ms. Forbes has not determined which products may endanger the employees and she is not addressing the criteria specified by subsection (2) for the simple reason she does not know what the law requires.She was unaware of the specific requirements for the hazard investigation and did not understand who is a qualified person under the Code.

In my opinion, no qualified person has been appointed by the employer to carry out the investigation referred to in section 10.4 and no such investigation has been carried out. For those reasons, the direction needs to be confirmed.


Decision

For all the above reasons, I HEREBY CONFIRM item #3 of the direction issued under subsection 145(1) of the Code on February 1, 1999 by safety officer Paul Danton to North East Air Services.


Item #4: The employer has failed to develop and implement an employee education program with respect to hazard prevention and control at the work place. (WHMIS)

Position of safety officer Danton

The safety officer stated that during previous discussions pertaining to the training and education of the employees at this work place, Ms. Forbes indicated that she did not maintain any records of any training of any employees. She stated that employees receive training on the job probably every hour. Therefore there was no need to be trained by way of a formal training program. The safety officer asserted that Ms. Forbes again reiterated that she was a W.H.M.I.S. trainer and she also indicated that Mr. Parchewsky was also trained in W.H.M.I.S. and was also a W.H.M.I.S. trainer. Ms. Forbes was however unable to produce any documentation describing the type of training she alleged to have given to employees simply because no such document existed. The employees also confirmed to the safety officers they had not received any W.H.M.I.S. training at North East Air Services.

Position of Ms. Forbes

Ms. Forbes acknowledged she did not give any formal W.H.M.I.S. training to her employees but feels they are trained every hour on the job and that this form of training is probably more productive than a formal class training would be. She stated they began the W.H.M.I.S. training to employees on the next day following the visit of the safety officers. Ms. Forbes requested that the Regional Safety Officer grant the company an extension of time to comply with the direction.


Reasons for Decision

The issue to be decided here is whether North East Air Services has developed and implemented an employee education program as required by section 10.14 of the Regulations which provides as follows:

10.14 (1) Every employer shall, in consultation with the safety and health committee or the safety and health representative, if either exists, develop and implement an employee education program with respect to hazard prevention and control at the work place.

(2) The employee education program referred to in subsection (1) shall include

(a) the instruction of each employee who is likely to handle or be exposed to a hazardous substance with respect to

(i) the product identifier of the hazardous substance,

(ii) all hazard information disclosed by the supplier or by the employer on a material safety data sheet or label,

(iii) all hazard information of which the employer is aware or ought reasonably to be aware,

(iv) the observations referred to in subparagraph 10.5(a)(i),

(v) the information disclosed on a material safety data sheet referred to in section 10.28 and the purpose and significance of that information, and

(vi) in respect of controlled products in the work place, the information required to be disclosed on a material safety data sheet and on a label under Division III and the purpose and significance of that information;

(b) the instruction and training of each employee who installs, operates, maintains or repairs an assembly of pipes or any other equipment referred to in section 10.24, with respect to

(i) every valve and other control and safety device connected to the assembly of pipes, and

(ii) the procedures to follow for the proper and safe use of the assembly of pipes;

(c) the instruction and training of each employee referred to in paragraphs (a) and (b) with respect to

(i) the procedures to follow to implement sections 10.8, 10.9 and 10.12, and

(ii) the procedures to follow for the safe storage, handling, use and disposal of hazardous substances, including procedures to be followed in an emergency involving a hazardous substance; and

(d) where the employer keeps a computerized version of a material safety data sheet available in accordance with subsection 10.34(2), the instruction and training referred to in paragraph 10.34(2)(b) in accessing that material safety data sheet.

(3) Every employer shall, in consultation with the safety and health committee or the safety and health representative, if either exists, review the employee education program referred to in subsection (1) and if necessary, revise it

(a) at least once a year;

(b) whenever there is a change in conditions in respect of the hazardous substances in the work place; and

(c) whenever new hazard information in respect of a hazardous substance in the work place becomes available to the employer.

Ms. Forbes has acknowledged she has not given employees the type of program referred to above.In fact, I believe that Ms. Forbes has only became aware of the content of section 10.14 at the hearing when she also realized she was working from an outdated copy of the Code. Regardless of the above, Ms. Forbes recognized she was not in compliance with section 10.14 and requested the Regional Safety Officer grant her an extension of time to bring North East Air Services into compliance with the law. At the hearing, I indicated to Ms. Forbes that she would be granted an extension of time as requested. The new date for compliance was set for March 27, 1999. However, in light of the complaint made by Ms. Forbes in respect of the alleged untimely reception of the material necessary to prepare herself for the hearing and my decision to allow her more time to make submissions, I am extending the time limit to comply with this direction to April 27, 1999.

Decision

For all the above reasons, I HEREBY VARY item #4 of the direction issued under subsection 145(1) of the Code on February 1, 1999 by safety officer Paul Danton to North East Air Services by replacing the reference “to terminate the contravention no later than February 15th 1999” by “to terminate the contravention no later than April 27, 1999.”

Decision rendered on April 13, 1999.

Serge Cadieux

Regional Safety Officer

APPENDIX I

IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYER UNDER SUBSECTION 145(1)


On January 26, 1998, the undersigned safety officer arrived at the work place operated by NORTH EAST AIR SERVICES, being an employer subject to the Canada Labour Code, Part II, at P.O. Box 1720, HANGAR 4, BRANTFORD MUNICIPAL AIRPORT, BRANTFORD, ONTARIO, the said work place being sometimes known as North East Air, for the purpose of exercising the powers granted by subsection 141(1) of the Canada Labour Code, Part II.

The said safety officer, and an Ontario Ministry of Labour Industrial Inspector, Lynn Presseau accompanying the said safety officer were refused access to the work place by Carolyn Forbes, Manager and Ernie Parchewsky, owner.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of the Canada Labour Code, Part II, to take measures immediately to ensure compliance with sections 142 and 143 of the Canada Labour Code, Part II, by granting access into the work places controlled by you to any safety officer designated by the Minister of Labour.

Issued at Brantford, this 26th day of January 1999.

ROD NOEL

Safety Officer #1768

To: NORTHEAST AIR SERVICES

P.O. BOX 1720, HANGAR 4

BRANTFORD MUNICIPAL AIRPORT

BRANTFORD, ONTARIO

N3T 5V7

APPENDIX II

IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 145(2)(a) AND (b)

On January 27th, 1999, the undersigned safety officer conducted an inspection in the work place operated by NORTHEAST AIR SERVICES, being an employer subject to the Canada Labour Code, Part II, at P.O. Box 1720, HANGAR 4, BRANTFORD MUNICIPAL AIRPORT, BRANTFORD, ONTARIO the said work place being sometimes known as North East Air Services.

The said safety officer considers that the use or operation of thing constitutes a danger to an employee while at work:

The said safety officer considers that the portable wooden step ladder used in the work place to access the upper mezzanine work station, has rungs which are damaged, oil soaked, have saw cuts, are loose, and beyond repair, which constitutes a danger, at the work place. Reference is made to subsection 2.6, 3.2, and 3.11 of the Canada Occupational Safety & Health Regulations. And further the wooden ladder does not meet the standards in accordance with CSA Standard CAN 2-Z11-M81 (Portable Ladders).

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to immediately protect any person from danger.

You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, not to use or operate the thing in respect of which the notice of danger No 7357 has been affixed pursuant to subsection 145(3), until this direction has been complied with.

Issued at Brantford, this 1st day of February 1999.

PAUL DANTON

Safety Officer #1863

To: Mr. E.A. (Ernie) Parchewsky

NORTHEAST AIR SERVICES

P.O. BOX 1720, HANGAR 4

BRANTFORD MUNICIPAL AIRPORT

BRANTFORD, ONTARIO

N3T 5V7

APPENDIX III

IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 145(2)(a) AND (b)

On 1 February, 1999, the undersigned safety officer conducted an inspection in the work place operated by NORTHEAST AIR SERVICES, being an employer subject to the Canada Labour Code, Part II, at P.O. Box 1720, HANGAR 4, BRANTFORD MUNICIPAL AIRPORT, BRANTFORD, ONTARIO the said work place being sometimes known as North East Air Services.

The said safety officer considers that the use or operation of a thing, constitutes a danger to an employee while at work:

The employer has failed to verify to the safety officer, that the one ton overhead crane has been installed, and is being maintained in a safe manner.The employer has failed to provide as required by the COSH regulation XIV section 14.20 written instructions on the inspection, testing and maintenance of the said crane.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to immediately protect any person from danger.

You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, not to use or operate the thing in respect of which the notice of danger No 7355 has been affixed pursuant to subsection 145(3), until this direction has been complied with.

Issued at Brantford, this 1st day of February, 1999.

PAUL DANTON

Safety Officer #1863

To: Mr. E.A. (Ernie) Parchewsky

NORTHEAST AIR SERVICES

P.O. BOX 1720, HANGAR 4

BRANTFORD MUNICIPAL AIRPORT

BRANTFORD, ONTARIO

N3T 5V7

APPENDIX IV

IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 145(2)(a) AND (b)

On 1 February, 1999, the undersigned safety officer conducted an inspection in the work place operated by NORTHEAST AIR SERVICES, being an employer subject to the Canada Labour Code, Part II, at P.O. Box 1720, HANGAR 4, BRANTFORD MUNICIPAL AIRPORT, BRANTFORD, ONTARIO the said work place being sometimes known as North East Air Services.

The said safety officer considers that the use of a place, in the work place, constitutes a danger to an employee while at work:

The upper level mezzanine work area used by employees for fabric layup and gluing of aircraft structural components, presents a danger to employees due to unsafe flooring and damaged steel supports, lack of proper guard rails, and unsafe access and egress which is provided only by a portable wooden step ladder. The hazardous substances being used in this work area require significantly enhanced ventilation and fire hazard controls, which are not currently in place.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to immediately protect any person from danger.

You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, not to use or operate the thing in respect of which the notice of danger No. 7356 has been affixed pursuant to subsection 145(3), until this direction has been complied with.<

Issued at Brantford, this 1st day of February 1999.

PAUL DANTON

Safety Officer #1863

To: Mr. E.A. (Ernie) Parchewsky

NORTHEAST AIR SERVICES

P.O. BOX 1720, HANGAR 4

BRANTFORD MUNICIPAL AIRPORT

BRANTFORD, ONTARIO

N3T 5V7

APPENDIX V

IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPH 145(1)

On January 27th, 1999, the undersigned safety officer conducted an inspection in the work place operated by NORTHEAST AIR SERVICES, being an employer subject to the Canada Labour Code, Part II, at P.O. Box 1720, HANGAR 4, BRANTFORD MUNICIPAL AIRPORT, BRANTFORD, ONTARIO the said work place being sometimes known as North East Air Services.

The said safety officer is of the opinion that the following provisions of the Canada Labour Code Part II are being contravened:

1. Canada Labour Code, Part II, sub-paragraph 125(d)(i)

The employer has failed to post a copy of the Canada Labour Code, Part II at the work place as required.

2. Canada Labour Code, Part II, paragraph 125.1(a)(b) and Canada Occupational safety and Health Regulation (COSH Reg.) X. Section 10.3

The employer has failed to keep and maintain, and to provide to a Safety Officer, a current record of all hazardous substances used, handled or stored in the work place.

3. Canada Labour Code, Part II paragraph 125.1(a)(b) and COSH Reg. X, Section 10.1.

The employer has failed to appoint a qualified person to carry out a hazard investigation with regard to all hazardous substances found at the work place. During an inspection of the work place, a list of some of the products identified by the safety officer includes, but is not limited to, the following hazardous substances: Methyl Ethel, Keytone, Acetone, Epoxy Primer, Fiberglass Resine, Isocyanates, Lacquer thinners and hardeners, Varsol and other paint and related products used in fiberglass work and the preparation and painting of aircraft.

4. Canada Labour Code, Part II Paragraph 125(q) and COSH Reg. X , Section 10.14.

The employer has failed to develop and implement an employee education program with respect to hazard prevention and control at the work place. (WHMIS)

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of the Canada Labour Code, Part II, to terminate the contravention no later than February 15th 1999.

Issued at Brantford, this 1 February 1999.

PAUL DANTON

Safety Officer #1863

To: Mr. E.A. (Ernie) Parchewsky

NORTHEAST AIR SERVICES

P.O. BOX 1720, HANGAR 4

BRANTFORD MUNICIPAL AIRPORT

BRANTFORD, ONTARIO

N3T 5V7

SUMMARY OF REGIONAL SAFETY OFFICER DECISION


Decision:
99-007

Applicant: North East Air Services

Respondent: Chris Leonard

KEY WORDS: Harassment, abuse of authority, cooperation, evicted, certificate of identification, appointment, step ladder, WHMIS, material safety data sheet,


PROVISIONS:


Code: 122(1), 125(e), 141, 141(1), 141(1)(c), !41(2), 142, 143, 145(1), 145(2)(a)(b), 146(3)

C.O.S.H. Regulations: 1.2, 2.6, 3.2, 3.11, 10.3, 10.4, 10.14, 14.20

SUMMARY:

Following an anonymous complaint, a safety officer attended the work place of North East Air Services. A total of five directions were issued to the company.

I- Direction 145(1)

As the safety officer entered the premises of North East Air Services in the company of a provincial safety inspector, they were met by the manager of the company. She alleged the safety officer abused his authority and, in the company of another safety officer, issued directions for the purpose of shutting down the company. The manager alleged the safety officer was retaliating against her for having evicted him the day before. The safety officer gave a direction to the manager to secure her collaboration. Upon review, the Regional Safety Officer (RSO) ruled that the safety officer acted properly when he attended the business and that he entered the facility in a manner that accords with the law. The directions issued in this case were deemed to have been issued within the authority of the safety officers. The RSO confirmed the direction.

II- Direction 145(2)(a) and (b):


The safety officer gave a direction for danger because a step ladder that was used in the work place had rungs which were damaged, oil soaked, had saw cuts, were loose, and beyond repair. At the hearing of this case, the employer’s representative requested that the review for this direction be abandoned. The direction was therefore confirmed.

III- Direction 145(2)(a) and (b):

The safety officer gave a direction to the employer because he considered that the configuration of a one ton overhead crane was unsafe. The structural elements to which the crane was attached was sitting on shelving units and did not appear to be welded to the units and to the metal beams. As it turned out, the beams were welded together and to the shelving unit. The crane was not being used at the time of the inspection. Also, the RSO noted that the safety officer had no information that would lead him to believe that an injury was about to occur. He found the unit to be hazardous but that the danger was prospective and not immediate. The RSO rescinded the direction.

IV- Direction 145(2)(a) and (b):

The safety officer gave a direction in this case because he felt that“The upper level mezzanine work area used by employees for fabric lay-up and gluing of aircraft structural components, presents a danger to employees due to unsafe flooring and damaged steel supports, lack of proper guard rails, and unsafe access and egress which is provided only by a portable wooden step ladder. The hazardous substances being used in this work area require significantly enhanced ventilation and fire hazard controls, which are not currently in place.” Upon review, the RSO considered the difference between a danger within the general meaning of the term and a danger within the meaning of the Code. It was decided the safety officer had no information in his possession which would support a finding of danger within the meaning of the Code for the reference to unsafe flooring, damaged steel supports and lack of proper guard rails. These were deemed to be infractions and removed from the direction. The reference to access and egress was confirmed since the employer had withdrawn its request to have the direction respecting the wooden step ladder removed. The reference to enhanced ventilation and fire hazard controls was confirmed because the safety officer established the use of a flammable product, the presence of a source of ignition in the immediate vicinity of the product and the absence of proper ventilation.

V- Direction 145(1)

The safety officer gave a direction to the employer because several provisions of the Code and the Regulations were being contravened. The are:

Item #1: The safety officer observed that no copy of the Code was posted.The employer recognized this was true. The RSO confirmed this direction.

Item #2: The safety officer established that the employer failed to keep and maintain a current record of all hazardous substances found in the work place as required by section 10.3 of the Regulations. The safety officer also indicated the employer failed to provide the said record to the safety officer. Upon review, the RSO agreed with the safety officer that the employer was in contravention of the Code and the Regulations in respect of keeping and maintaining a current copy of the record of hazardous substances. He varied the direction to identify the proper provision of the Code which authorizes this provision and he eliminated from the direction the reference to providing the record to the safety officer because he found that section 10.3 of the Regulations did not address this issue.

Item #3: The employer was cited for failing to appoint a qualified person to carry out a hazard investigation with regards to all hazardous substances found at the work place. The RSO established that no one in the company was qualified within the meaning of the Code to carry out the said investigation. It was established to the satisfaction of the RSO that the employer had failed to comply with section 10.1 of the Regulations. The RSO confirmed the direction.

Item #4: The safety officer cited the employer for failing to develop and implement an employee education program as required by section 10.14 of the Regulations. The employer did not challenge the substance of the direction but requested an extension of time to comply with the direction. The RSO granted an extension of time and varied the direction accordingly.



[1] A reference to a “danger tag” is to be understood as a reference to a “Notice of Danger” as provided by paragraph 145(3) of the Canada Labour Code.

[2] 141 (1) A safety officer may, in the performance of the officer’s duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may

(a) conduct examinations, tests, inquiries and inspections or direct the employer to conduct them;

(b) take or remove for analysis, samples of any material or substance or any biological, chemical or physical agent;

(c) be accompanied and assisted by such persons and bring with him such equipment as the safety officer deems necessary to carry out his duties;

(d) take photographs and make sketches;

(e) direct the employer to ensure that any place or thing specified by the safety officer not be disturbed for a reasonable period of time pending an examination, test, inquiry or inspection in relation thereto;

(f) direct the employer to produce documents and information relating to the safety and health of his employees or the safety of the work place and to permit the safety officer to examine and make copies of or extracts from those documents and that information; and

(g) direct the employer to make or provide statements, in such form and manner as the safety officer may specify, respecting working conditions and material and equipment that affects the safety or health of employees.

[3] 145(1). Where a safety officer is of the opinion that any provision of this Part is being contravened, the officer may direct the employer or employee concerned to terminate the contravention within such time as the officer may specify and the officer shall, if requested by the employer or employee concerned, confirm the direction in writing if the direction was given orally.

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