Archived - 1999 OHSTC 010

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

of a direction issued by a safety officer

Decision no.: 99-010

Applicant: Federal Marine Terminals, a subsidiary of Fednav Ltd.

Montreal, Quebec

Represented by: Patrick Benaroche

Respondents: Syndicat des débardeurs, CUPE

Local 375

Represented by: Mr. Daniel Tremblay

and

International Longshoremen’s Association

Local 1657

Represented by: Mr. Donald Beerworth

Mis-en-cause: Alain Messier

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

It was decided to hear this case through written submissions, since the parties to the proceeding were unable to agree on a hearing date. A conference call also took place on February 10, 1999 in which all the parties to the proceeding participated. Its purpose was to inform the parties, and in particular the applicant, that they had to present arguments to the regional safety officer concerning whether or not there was a danger within the meaning of Part II of the Canada Labour Code (hereinafter the Code), for each direction issued by the safety officer. Each item of a direction itself constitutes a direction.

Background

On December 3, 1997, around 10:30 a.m., Mr. Joseph Ronci, a checker employed by the stevedoring company Federal Marine Terminals (hereinafter “FMT”), operating in the Port of Montreal, was crushed by a moving 25-ton lift truck.

The accident was reported immediately to Human Resources Development Canada, Labour Branch, and an investigation was launched immediately by Mr. Alain Messier, safety officer. He was assisted throughout the investigation by another safety officer, Mr. Yves Jégou. The safety officer submitted a detailed Accident Investigation Report (hereinafter the Report) in this case.

The investigation

During his investigation, the safety officer questioned a number of witnesses to the accident and persons having any connection with it and included their statements in the record. He took photographs, relevant measurements and included in the Report sketches of the accident scene and the autopsy report on Mr. Ronci’s death.

The investigation revealed that, at the time of the accident, Mr. Ronci was walking from the trailer that served as the administration building and rest area, which was located to the east of the entrance gate, to the part of the wharf opposite hold no. 5 of the ship to be unloaded, located some 100 metres south of the gate, where work awaited him. In order to reach his destination, he had to cross the materials handling area. At the same time, Mr. Richard Laporte, operator of 25-ton lift truck no. 9560, was returning from transporting a load to the parking area. He was driving forward, in a southerly direction, from the gate to the part of the wharf opposite hold no. 6 of the ship. The lift truck was not carrying a load and it forks were raised to a height of one metre.

At one point, Mr. Ronci was directly in the path of Mr. Laporte’s moving lift truck. Mr. Laporte did not see Mr. Ronci who was crushed by the left front wheels of the lift truck. At the time, the lift truck was at a point some 38 metres south of the entrance gate.

The Report reveals that FMT is a stevedoring company operating in the Port of Montreal. It is represented by the Maritime Employers’ Association (hereinafter the MEA). The Report also indicates that the MEA is responsible for taking disciplinary action at the employers’ request, but that “prior to the accident, no disciplinary action had been taken against an employee for not following a safety procedure”.

The safety officer reported the following:

“At the time of the accident, the work in question consisted in unloading goods from hold nos. 5 and 6 of a ship, the M/V Lake Ontario, located at the far west end of shed 49, and depositing them in different locations on the wharf.

The goods in hold no. 6 were to be deposited on the wharf using a crane, then transported to the parking area using 25-ton lift trucks.

The goods in hold no. 5 were transported to the yard in section 48.”

He explained that the parking area for visitors’ and employees’ vehicles, sections 48 and 49 and shed 49 were used as a materials storage and handling area.

The safety officer and his colleague made certain observations and also collected information at the accident scene. For example, on December 3, 1997, the officers made the following observations concerning lift truck no. 9560:

·the forks of the lift truck were one metre off the ground;

·22 centimetres of snow had accumulated on the rear part of the lift truck, which obstructed the operator’s view when travelling in reverse;

·the apron of the forks, the hydraulic cylinders of the forks, the forks, the mast and the mobile part of the mast obstructed the lift truck operator’s forward view; and

·the mirror on the right side of the lift truck was broken and could not be used when the vehicle was travelling in reverse.

The following day, December 4, 1997, while the same ship was docked at section 48 and the same unloading activities were in progress there, the two officers also observed the following:

·no pathway was provided for the exclusive use of pedestrians;

·there was no signaller or traffic light to control traffic;

·an employee used the running board of a piece of materials handling equipment to travel from on place to another;

·a foreman stated that he used the running board of a piece of materials handling equipment to travel from one place to another;

·in the parking area north of the fence, goods were handled by lift trucks, but were stored helter-skelter amidst the vehicles belonging to persons having business in sections 48 and 49; the operators did not have an unobstructed view of the area and were not directed by a signaller while employees and persons having access to the storage area were walking to their automobiles or towards the wharf;

·the 25-ton lift truck operators kept the forks of their vehicles one metre off the ground while driving forward, without a load, and this obstructed their view;

·loads exceeding the width of the lift trucks were handled above the heads of persons on the ground in the parking area and on the wharf;

·a number of lift trucks were not fitted with an audible warning device that automatically operates when they travel in reverse; and

·foremen, persons who had access to the materials handling area and the majority of employees were not wearing a high-visibility vest.

The two safety officers also questioned witnesses, on different dates, in the presence of the employer’s representatives. From these interviews, they concluded that, on December 3, 1997:

·no pathway was provided for the exclusive use of pedestrians and no signaller controlled traffic;

·there was no procedure in effect for ensuring the safe movement in the workplace of pedestrians and all motorized materials handling equipment;

·no control over traffic was exercised by the employer;

·each employee decided for himself how to move about on the wharf, whether on foot or at the controls of a piece of materials handling equipment;

·the only preventive measure in effect governing the movement of pedestrians consisted in pedestrians being careful not to be crushed and in operators being careful not to crush pedestrians;

·employees had no discussion with their superior concerning safe work methods;

·the view of operators of materials handling equipment weighing 25 tons or more was limited, even without a load, because of the manner in which they drove and the dimensions of this equipment and because they were not directed by a signaller; and

·corrective action was not taken when an individual engaged in dangerous practices.

Relying on the observations made during his investigation and the information gathered during the questioning of witnesses, safety officer Messier identified and analysed four possible causes of the accident. He accepted three of these causes as actual causes of the accident:

1.Monsieur Ronci walked across the materials handling area on his way to his work station. The analysis of this cause shows that because no pathway was provided for the exclusive use of pedestrians and because no signaller controlled traffic, Mr. Ronci had no choice but to cross the materials handling area, thereby exposing himself to moving materials handling equipment.

2.Monsieur Laporte did not see Mr. Ronci. The analysis of this cause shows that Mr. Laporte was driving his lift truck forward, without a load, with the vehicle’s forks raised one metre off the ground, with the result that he did not have a completely clear field of vision.

3.The employer did not ensure that the safety and health at work of every person employed by it was protected. The analysis of this cause shows that there were a number of risks of being crushed and that these risks were either observed by the safety officer or reported to him during the questioning of witnesses. Mr. Ronci was therefore merely one of a number of persons to be exposed to such risks.

On December 4, the safety officer issued a first oral direction (APPENDIX A) to FMT pursuant to paragraph 145(2)(a) of Part II of the Canada Labour Code (hereinafter the Code), and confirmed this direction in writing on December 8, 1997. This direction consists of eleven individual directions or eleven items.

On January 9, while he was doing certain inspections of 25-ton lift truck no. 9560, he noticed that the rear tires of this lift truck and of another lift truck nearby were badly worn. He therefore issued another oral direction (APPENDIX B) to the employer under paragraphs 145(2)(a) and (b) of the Code and confirmed this direction in writing on January 12, 1997.

Finally, on December 17, when the safety officer returned to the same premises that were the subject of the direction of December 8, in order to monitor compliance with this direction, he noticed that item 11 of this direction was the only corrective measure the employer had taken. The safety officer immediately issued a further direction (APPENDIX C) pursuant to paragraphs 145(2)(a) and (b) of the Code, along with a notice of danger. On January 18, the safety officer confirmed in writing the oral direction issued the previous day. Late in the day on January 18, he withdrew the notice of danger posted the previous day because he was satisfied that the majority of corrective measures had been taken or were being implemented.

All these directions are being appealed to the regional safety officer. However, FMT withdrew the request to review item 11 of the direction of January 8, 1997.

CLARIFICATION

It is important to note that, in this case, the three directions were issued under subsection 145(2) of the Code because of the existence of a danger. Since the notion of danger as contemplated by the Code was not addressed by the parties in their written submissions, I informed them through a conference call to submit arguments to me on this matter. I informed them that I intended to render a decision in this case by relying on the concepts of danger as defined by the courts and administrative tribunals that have had to examine and interpret the notion of danger as contemplated by the Code.

The following arguments constitute the parties’ positions on this aspect of the directions. The parties’ more detailed initial submissions are in the record and will not be described below. However, I will take these submissions into account, as required, in my decision.

The employer’s arguments

Mr. Benaroche examined the regional safety officer’s jurisdiction and the notion of danger as contemplated by the Code.

According to Mr. Benaroche, the powers conferred on the regional safety officer under section 146 of the Code did not allow him to develop a notion of danger that went beyond that identified by the safety officer or to substitute his assessment of a danger that might exist on the day of the safety officer’s visit to the workplace for an assessment that the safety officer himself had not done. He noted in this regard that the safety officer must determine, following an investigation, whether a danger exists. He added that the Federal Court of Canada had already held that it was not sufficient for the safety officer to presume the existence of a danger to justify his intervention, but that there had to be evidence of this danger (see Mario Lavoie F.C.J. no. 1285). Mr. Benaroche noted that the safety officer observed what he considered to be risks of being crushed and reached the general conclusion that a danger existed, in counsel’s words, “without establishing or providing evidence that a danger had crystallized”.

Mr. Benaroche briefly reviewed the case law on the notion of danger under the Code. He explained that Parliament did not intend to use the word “danger” in its broadest sense. The danger contemplated by the Code must be real and immediate. It could not be inherent in the work or a normal condition of employment. The possibility of injury or danger did not constitute sufficient reason per se to declare a condition a “danger” within the meaning of the Code.

Mr. Benaroche explained at length the “dangerous” nature of the work of a longshoreman. Following a fatal accident, like the one that took Mr. Ronci’s life, it was normal for an investigation to be conducted. However, to quote Mr. Benaroche, “every accident is not and must not necessarily be equated with a danger within the meaning of the Code. In each case, the context and particular circumstances of the accident must be evaluated.” The safety officer therefore erred in assuming that a danger existed because there was no valid reason for his decision. His finding that a danger existed was not based on any objective evidence.

On many occasions in the past, the safety officer had visited the same workplace and observed its operation. If the safety officer had not seen fit to intervene in the past when the same operations were in progress, how could he issue the directions concerning a danger that he had issued, bearing in mind that the danger must be real and immediate? With regard to the right of employees to refuse to perform dangerous work, Mr. Benaroche wondered why the employees had not exercised this right “in the case of the contested directions”.

Mr. Benaroche concluded by pointing out the following:

Without prejudice to the preceding arguments, even if we acknowledge that each and every one of the procedures may not have been followed to the letter by the employer or the employees on the day of the safety officer’s visit, this does not mean that dangers within the meaning of the Code existed in the workplace.

The employees’ submissions

Mr. Raymond Leclerc, the union representative acting for the respondents, replied to

Mr. Benaroche’s submissions by making the following comments:

As Mr. Benaroche pointed out concerning your letter of February 22, your reference to paragraph 145(2)(a) of the Code, although appropriate, in no way binds the parties to this proceeding or the regional safety officer in determining the law. In this sense, we agree with the applicant that some of the directions issued were issued pursuant to section 145(1) of the Code. While this observation alone does not invalidate the direction issued in this circumstance, it relieves the safety officer and the parties to this proceeding of the obligation to discuss the notion of danger. Mere evidence of a failure to comply with Part II of the Code allows the safety officer to intervene, without restriction.

Mr. Leclerc pointed out that “the case law defining the notion of danger covers the case where a worker exercises his right to refuse to work.” Thus, the Canada Labour Relations Board (CLRB) held that in the case of a refusal to work, the danger must be real and immediate and based on objective criteria. He explained that the right to refuse to work is in fact an emergency measure designed to deal with dangerous conditions that might arise suddenly.

Mr. Leclerc also explained at length the notion of inherent danger. He acknowledged that even if there was danger inherent in work, this did not mean that it could not be the subject of preventive measures. A safety officer had the power to issue directions under subsection 145(1) of the Code even if it were determined that no danger existed, a principle which was recognized by the Federal Court of appeal in Bonfa. According to Mr. Leclerc, there was practically no difference between a safety officer’s power during an investigation of a refusal to work and his power during an inspection. Moreover, in a situation where there was danger inherent in work, the observance of a contravention of the Code was sufficient in itself to justify the safety officer’s intervention.

Reasons for decision

The question to be answered here is the following: do the conditions described by the safety officer in the attached directions (APPENDIXES A, B and C) constitute “dangers” within the meaning of the Code? Subsidiarily, should the regional safety officer decide there is no “danger” within the meaning of the Code, what authority does the regional safety officer have to transform a direction issued under subsection 145(2) of the Code, where a danger exists, into a direction issued under subsection 145(1) of the Code for a contravention thereof?

I - Notions of danger

To answer the first question, the principles that apply to a “danger” as contemplated by the Code must be identified. The parties to this proceeding agree with the abundant case law that has established the principles that are to apply in cases of a refusal to work.

The danger must be immediate and real (Montani v. Canadian National Railway Company, C.L.R.B. decision no. 1089). The danger must be present at the time of the safety officer’s investigation (Bonfa v. Minister of Employment and Immigration, File no. A-138-89). The danger must be more than hypothetical. Moreover, as Mr. Benaroche noted, the safety officer must determine, following an investigation, whether a danger within the meaning of the Code exists. The safety officer cannot presume the existence of a danger in order to intervene, but must gather evidence in this regard (Mario Lavoie 1998 F.C.J. no. 1285) and his decision must be based on objective criteria (Coulombe v. Empire Stevedoring Company Ltd., C.L.R.B. decision no. 747). The danger must be one that is contemplated by the Code. Consequently, a danger that is inherent in the employee’s work or that constitutes a normal condition of employment cannot serve to justify the right to refuse (Montani, supra).

In a well-known decision (no. 686) rendered on April 26, 1988, the Vice-Chairman of the Canada Labour Relations Board, Hugh R. Jamieson, wrote as follows:

Danger is defined in the Code as:

“danger” means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto, before the hazard or condition can be corrected.”

If one recalls that Part IV of the Code referred to “imminent danger” prior to the adoption of the present definition of danger in 1984, it is readily apparent from the carefully chosen words in the definition that the legislators intended to retain an essence of immediacy in the concept of danger as it relates to an employee’s right to refuse under sections 85 and 86, and also to a safety officer’s powers to issue a direction in dangerous situations under section 102(2).

Following this decision, administrative tribunals and the Trial and Appeal divisions of the Federal Court took the same position as that taken in the above-quoted decision. They enunciated principles similar to the principle of imminent danger, namely, that the danger must be immediate, real, present at the time of the safety officer’s investigation, more than hypothetical, based on objective criteria, etc. Mr. Leclerc would like to limit the application of these principles to the exercise of the right to refuse to work. I do not agree. The decision rendered by the CLRB at the time explained that this notion of immediate danger applied:

. . . [to] the concept of danger as it relates to an employee’s right to refuse under sections 85 and 86, and also to a safety officer’s powers to issue a direction in dangerous situations under section 102(2). (Emphasis added)

It should be noted that prior to 1984, the notion of danger was not defined in the Code. Instead, the Code contained the expression “imminent danger” that was used at the time in the sections dealing with the right to refuse to work and the safety officer’s power to issue directions where a danger exists. At that time, the provision empowering the safety officer to issue a direction where a danger exists read as follows:

94.(1) Where a safety officer considers that any place, matter or thing, or any part or parts thereof, in a federal work, undertaking or business constitutes a source of imminent danger to the safety or health of persons employed therein or in connection with the operation thereof and that the use of the place, matter or thing is thereby contrary to this Part and the regulations, …

Consequently, the above definition, which served to replace the expression “danger imminent”, and all the principles enunciated in the above-cited case law, also apply to the safety officer’s power to issue a direction where a danger exists.

A direct consequence of this conclusion is that when the safety officer investigates following an accident, he can conclude only that the cause of the accident constitutes a danger, within the meaning of the Code, at the time of his investigation and issue a direction where a danger exists. The “immediate” danger existed just prior to the accident and, unless the safety officer has objective information or evidence that the same condition is about to occur during his investigation, he cannot conclude that a danger within the meaning of the Code exists. At most, he can conclude that the Code has been contravened or that there is a danger in the general sense of the term. The same is true where a safety officer inspects a workplace. Observing conditions that could eventually cause injury or illness does not make these conditions per se “dangers” within the meaning of the Code.

In the case of a danger in the general sense of the term, the risk of injury or illness remains possible, hence hypothetical, and may materialize sooner or later. At that point, the safety officer does not possess or has not collected any specific facts during his investigation or any evidence that a person exposed to the risk or the condition is about to suffer injury or illness. In short, what distinguishes a “danger within the meaning of the Code” from a “danger in the general sense of the term” is its immediate nature.

II - Powers of the regional safety officer

Mr. Tremblay acknowledged, as did the applicant, that some of the directions issued were issued pursuant to subsection 145(1) of the Code. The difference of opinion stems from the fact that

Mr. Tremblay believes that this does not invalidate the direction issued, whereas I am of the opposite view.

Where the review reveals that the “danger” observed by the safety officer constitutes a contravention of the Code or Regulations, or is simply a danger in the general sense of the term, I will have no alternative but to rescind the direction in question because section 146 of the Code does not authorize the regional safety officer to issue a new direction. Subsection 146(3) of the Code provides as follows:

146 (3) The regional safety officer shall in a summary way inquire into the circumstances of the direction to be reviewed and the need therefor and may vary, rescind or confirm the direction and thereupon shall in writing notify the employee, employer or trade union concerned of the decision taken.

To transform a direction issued under subsection 145(2) in respect of a danger into a direction for an offence requires that a new direction be issued under subsection 145(1) of the Code, a power which I do not now have under the Code. Moreover, Rouleau J. of the Trial Division of the Federal Court had the opportunity earlier to rule on the same point in Vancouver Wharves Ltd. v. The Attorney General of Canada, Court file no. No. T-1125-97. At page 8 of the judgment, in reply to the applicant’s objection to the regional safety officer’s jurisdiction to vary a direction and the interpretation I had given concerning the limits of my jurisdiction under subsection 146(3) of the Code, Rouleau J. stated the following:

Applying these principles to the case at bar, I can find no fault with the Regional Safety Officer’s determination of the jurisdictional issue before him.

This “technical detail” is very important because it seems to relieve the recipient of the direction of any responsibility, when in fact such is not the case. At that point it will be up to the safety officer to decide whether a further visit should be made to the same premises to determine whether the employer has complied with the Code.

III - The directions

In light of the principles established by the above-cited case law, it is clear that the rather general observations and conclusions of the safety officer do not constitute “dangers” within the meaning of the Code. As Mr. Leclerc pointed out, “some directions issued were issued under section 145(1) of the Code”. In my opinion, Mr. Leclerc correctly assessed the circumstances and cleverly tried to limit the damage. However, the safety officer observed dangers in the general sense of the term, hazardous conditions, contraventions of the Regulations, but not a “danger” as contemplated by the Code. For this reason, and as I explained earlier, I am obliged to rescind the directions.

I will take the liberty of analysing briefly the individual directions for the benefit of the parties and the safety officer in order to show that they do not constitute “dangers” within the meaning of the Code. The same principles established by the above-cited case law will be applied to these situations. For example:

A. DIRECTION 145(2)(a) OF DECEMBER 8, 1997

Item #1: Materials handling equipment operators do not have an unobstructed view of the area in which their equipment must operate and are not directed by a signaller.

The safety officer observed that the assembly of the forks on the materials handling equipment impeded the operators’ view, with the result that they could not operate their materials handling equipment in a completely safe manner. He felt that signallers should have been directing the operators at the time, which clearly was not the case. Moreover, the safety officer observed a number of operators driving their equipment with the forks lowered. “This did not afford [them] a completely unobstructed view”. He accepted this cause as one of the actual causes of the accident.

In my opinion, the accident occurred not only because the forks and their assembly reduced the operator’s view, but also because the operator was not looking ahead when the accident occurred. He stated that his attention was focused on “…the other machine…My attention was focused on the other machine.” when he struck Mr. Ronci. Had the operator’s attention been focused on the area in front of his lift truck, as it should be, I have no doubt that, even though his view was reduced, but not obstructed by limitations inherent in the equipment and the fact that he was driving with the forks lowered, he would have seen Mr. Ronci and could have avoided hitting him.

There is no doubt that operating a 25-ton lift truck, with the forks a metre off the ground, in an area where employees and other people who have business there are moving about, creates a hazard that could possibly cause injury to people in the same work area as the lift truck, given that the forks and the lift truck’s assembly create numerous blind spots that obstruct the operator’s view. I note, however, that the safety officer did not intervene immediately to protect the employees, when he observed this practice, simply because the risk of injury was not serious enough to halt the operation. In other words, the safety officer did not intervene to protect pedestrians from the danger because he did not possess any specific information or any evidence that the danger was immediate.

In my opinion, the safety officer observed a hazardous practice with a potential to cause injury and decided to put an end to this practice because, as he reported, the employer’s representatives in the workplace were not taking any steps to stop this practice. As commendable as the safety officer’s action was, since the danger was not immediate, it was not a danger as contemplated by the Code.

As I stated earlier, I have no authority to issue a direction to the employer, under subsection 146(3) of the Code, for a contravention where the safety officer has concluded that a danger exists. However, this in no way limits the power of the safety officer to visit the same workplace again and determine whether the employer is complying with the Code and its Regulations.

Item #2: Loads that exceed the width of the forklift trucks are handled above the heads of pedestrians.

On December 4, 1997, the safety officers observed that loads that exceed the width of the forklift trucks are handled above the heads of persons on the ground in the parking area and on the wharf. Moreover, in a solemn declaration signed on December 4, 1997, Mr. Daniel Tremblay stated that he observed, in the safety officer’s presence, a load being handled above the heads of persons on the ground in the parking area.

In my opinion, if the safety officer had specific information that the load observed was going to fall on someone at that point in time, it was his duty to intervene immediately to protect the person from the danger and halt the operation in progress. However, the safety officer clearly did not possess any specific information that the load was going to fall on someone. At most, the safety officer observed a practice that he considered a danger in the general sense of the term.

On the latter point, I agree with the safety officer. It is completely unacceptable, at any time, for a person, whoever it is, to be walking beneath a load that is being transported by a lift truck or for an operator to drive about with a load above a person’s head. Common sense must prevail in this situation. An operator who operates his vehicle so carelessly should be reprimanded immediately and severely. However, since it was established that the employer never disciplined employees who engaged in such risk behaviour, one can conclude that the employer tolerates such behaviour.

It is clear that the situation described above involves many dangers in the general sense of the term and that the employer is not assuming its responsibility to protect the employees at work. If this situation persists, employees could be injured. However, the safety officer did not identify any specific fact to support his observation that a danger within the meaning of the Code existed. He did not ascertain whether the load should have been or was secured as prescribed by subsection 14.34(2) of the Regulations which reads as follows:

14.34(1) Where motorized or manual materials handling equipment is travelling with a raised or suspended load, its operator shall ensure that the load is carried as close to the ground or floor as the situation permits and shall not in any case transport the load at or beyond the point at which the loaded equipment becomes unstable.

(2) Any load, other than bulk materials, that would likely slide on or fall from motorized or manual materials handling equipment resulting in a hazardous condition shall be secured to prevent such movement.

The safety officer did not check the physical condition of the ground, the forks, the transporting or other conditions to determine whether the load was going to upset. What he observed was the possibility of an employee being injured if such a practice continues. Although the safety officer is right on this point, this type of danger is not covered by the Code because it is hypothetical and not immediate.

Item #3: Materials handling equipment is not clear of snow and the operators’ view is obstructed while travelling in reverse.

The same situation is repeating itself here. On December 3, 1997, the safety officer noted that 22 centimetres of snow had accumulated on the rear part of lift truck no. 9560, which obstructed the operator’s view while the vehicle was travelling in reverse. This observation is a static observation that does not meet the criteria to be considered a danger within the meaning of the Code. For example, the safety officer did not observe a situation in which an operator of motorized materials handling equipment was backing up in the direction of a person whom he did not see, when this person was unaware that the operator was backing up in his direction and that the operator’s view was obstructed by the snow.

The safety officer did not observe the lift truck being operated in reverse. He simply observed that 22 centimetres of snow had accumulated on the rear of the lift truck involved in the accident. Moreover, the union is also sceptical regarding the accumulation of snow, arguing that “it would be difficult to claim that the snow obstructs the operator’s view when the vehicle is being operated in reverse…” This puzzles me because it appears in fact that no one observed a lift truck being operated in reverse with an accumulation of snow on the rear of the vehicle. I am therefore unable to conclude that a real and immediate danger existed at the time of the safety officer’s investigation.

Item #4: In the parking area outside the gate, materials handling equipment transports loads and operators do not have an unobstructed view of the area and are not directed by a signaller while employees and persons having access to the materials handling area are walking to their automobiles or towards the wharf.

The same scenario applies here. The safety officer is making a general observation which, if valid, constitutes a contravention of the Regulations, but not a danger within the meaning of the Code.

Considerable importance was attached to determining whether the parking area met the requirements of a materials handling area. In my opinion, it matters little whether the parking area meets the requirements of a materials handling area as contemplated by the Regulations. I do not have to deal here with a contravention of the Regulations, but rather with a situation involving danger. A finding that a danger within the meaning of the Code exists can be made only on the basis of objective and tangible evidence that exists at the time of the safety officer’s investigation.

In my opinion, the safety officer observed numerous contraventions of the Act, but no “danger” within the meaning of the Code. The situation observed by the safety officer is likely to eventually cause injury to pedestrians in the parking area if nothing is done to rectify the situation. Moreover, the officer did not observe a specific condition that could reasonably be expected to cause injury to anyone before this condition can be corrected. The danger is therefore likely to occur in the future. It is hypothetical and not immediate. The direction issued is not, in my opinion, justified in the circumstances.

Item #5: Materials handling equipment is not fitted with an audible warning device that automatically operates while the equipment is travelling in reverse.

The question to be answered here is the following: does the fact that the safety officer observed that certain materials handling vehicles were not fitted with an audible warning device that automatically operates when they are travelling in reverse constitute a danger within the meaning of the Code? The relevant provisions that are likely to enlighten us in this case are subsections 14.16(1) and (2) of the Regulations, which read as follows:

14.16(1) Motorized materials handling equipment that is used in an area occupied by employees and that travels

(a) forward at speeds in excess of 8 km/h shall be fitted with a horn or other similar audible warning device; and

(b) in reverse shall, subject to subsection 14.51(1), be fitted with a horn or other similar audible warning device that automatically operates while it travels in reverse.

(2) Where an audible warning device referred to in subsection (1) cannot be clearly heard above the noise of the motorized materials handling equipment and any surrounding noise, does not allow enough time for a person to avoid the danger in question or does not otherwise provide adequate warning, other visual, audible or tactile warning devices or methods shall be used so that adequate warning is provided. (Emphasis added.)

Paragraph 14.16(1)(b) of the Regulations requires that materials handling equipment be fitted with an audible warning device that automatically operates while it travels in reverse. Failure to fit materials handling equipment with this device or operating such equipment with a defective device constitutes a contravention of the Regulations. The situation with regard to audible warning devices was addressed earlier by regional safety officer Douglas Malanka in Forest Products Terminal Corporation Ltd. vs. International Longshoremen’s Association, decision no. 99-006. In this case, a safety officer had issued a direction to the employer under subsection 145(1) of the Code because its motorized materials handling equipment was not equipped with audible warning devices. At review, the regional safety officer confirmed the essence of the direction, confining himself to correcting a slight error, thereby recognizing that this condition in itself constituted a contravention of the Regulations.

The above-cited subsection 14.16(2) explains that there would be a danger to an employee at work if an audible warning device did not allow enough time for the employee to avoid the materials handling equipment. The safety officer, however, did not in fact observe such a situation. He did not observe an employee likely to be injured by motorized materials handling equipment travelling in reverse, in the employee’s direction, while the equipment’s audible warning device was not functioning. It is the dynamics of such a situation that transform a contravention of the Code into a condition where a danger within the meaning of the Code exists.

In the instant case, the risk of injury is higher owing to the presence of pedestrians in the same materials handling area as the motorized handling equipment. The audible warning device is designed to prevent accidents. In this case, there is a flagrant contravention of the Code. However, the safety officer did not detect any condition where a danger within the meaning of the Code existed.

Item #6:Pathways are not provided for the exclusive use of pedestrians.

This direction is, above all else, an observation, indeed a specific recommendation designed to resolve certain problems involving the movement of pedestrians in the materials handling area, rather than a danger within the meaning of the Code. The absence of pathways for the exclusive use of pedestrians does not in itself constitute a danger within the meaning of the Code. A danger is a dynamic situation consisting of specific facts made up of objective elements. This is not to say that I do not agree with the safety officer. Obviously the presence of pathways for the exclusive use of pedestrians, as contemplated by section 14.44 of the Regulations, increases their safety. This section reads as follows:

14.44 An employer shall provide a clearly marked pathway for the exclusive use of pedestrians and persons using wheelchairs and other similar devices that is not less than 750 mm wide along one side of an aisle, corridor or other course of travel that is found in a work place and that:

(a) is a principal traffic route for mobile equipment, pedestrians and persons using wheelchairs and other similar devices; and

(b) exceeds 15 m in length.

Good arguments were presented to me by both sides to justify providing or not providing a pathway for the exclusive use of pedestrians. However, I cannot deal here with the merits of these arguments because they are not relevant to the context of a danger.

I believe that Mr. Ronci had no choice but to cross this materials handling area in order to reach the wharf where work awaited him because no pathway had been provided by the employer for the exclusive use of pedestrians and because no signaller, as prescribed by the Regulations, was directing handling operations. It is clear that had Mr. Ronci used a pedestrian pathway (see photographs S-5 à S-8, filed by the union), provided by FMT for the use of pedestrians further to the safety officer’s direction, he would be alive today.

In my opinion, it is very careless and even dangerous to allow employees who have to cross the materials handling area to move about in the same area as the motorized equipment while materials handling operations are in progress. At the least distraction, they risk being crushed. The only precaution they can take is to make sure they are not struck by moving motorized handling equipment. Pedestrians and motorized equipment are intermingled as a number of persons make their way to the various locations where work awaits them.

However, Mr. Ronci’s situation became a “danger” within the meaning of the Code as soon as the operator of the materials handling equipment began looking in another direction while he was travelling towards Mr. Ronci, who did not see the equipment approaching him. I believe it is in the employer’s interest to take steps to protect employees, or any other person, who has to cross the materials handling area to reach, for example, the wharf at the other end of the entrance control post. This direction, however, does not constitute a danger within the meaning of the Code.

Item #7: The majority of employees, managers and persons who have access to the materials handling area do not wear a high-visibility vest.

According to the Investigation Report, two safety officers, i.e., Messrs. Messier and Jégou, observed, i.e., saw foremen and other persons whom they observed not wearing high-visibility vests. Foremen, like employees, must wear high-visibility vests. The fact that they were not wearing any while the safety officers were conducting their investigation is clear evidence of the failure of the employer to fulfil its obligations concerning the safety and health of employees at work. Section 12.13 of the Regulations is clear in this regard:

12.13 Where an employee is regularly exposed to contact with moving vehicles during his work, he shall

(a) wear a high-visibility vest or other similar clothing, or

(b) be protected by a barricade

that is readily visible under all conditions of use.

However, the notion of danger requires that some circumstance or set of circumstances create a condition that could reasonably be expected to cause injury to a person exposed to it before the condition can be corrected. The mere observing of a contravention of a particular provision of the Regulations does not necessarily confirm the presence of a danger as contemplated by the Code. In light of the foregoing, I conclude that the safety officer observed a contravention of the Regulations but did not observe a condition likely to cause injury to a person during the safety officer’s investigation. However, under subsection 146(3) of the Code, I do not have the power to issue the directions that the safety officer should have issued. Under this provision, all I can do is “. . . vary, rescind or confirm . . .” the directions, which leaves me little latitude.

The safety officer did not observe any condition that could reasonably be expected to cause injury to a particular employee before the condition could be corrected. Not wearing a high-visibility vest does not in itself automatically constitute a danger within the meaning of the Code.

Item #8: There is no procedure for ensuring the safe movement of materials handling equipment;

and

Item #9: There is no procedure for ensuring the safe movement of pedestrians.

These two directions reflect what is regarded by the safety officer as shortcomings in the procedure for the safe movement of pedestrians and materials handling equipment in the materials handling area. They in no way identify a condition that could reasonably be expected to cause injury to one or more persons before this condition can be corrected. They describe instead the measures that the safety officer considers appropriate in the circumstances. While these measures are desirable, no direct cause-effect relationship was established to justify the issuing of a direction because of a danger. In my opinion, it is the job of the occupational safety and health committee to address these questions in conjunction with the employer and to propose, in light of the known or foreseeable risks, a procedure for ensuring the safe movement of pedestrians and materials handling equipment.

There is, moreover, a procedure for ensuring the safe movement of motorized equipment. This procedure is set out, as the union indicated, in section 14.3.5.4. of the Occupational Safety and Health Manual (O.S.H.M.), which reads as follows:

[translation]

4. Where practicable:

a) traffic should be one-way or in the form of a loop circuit; the direction of the traffic should be indicated by signage;

b) the principal traffic routes should be clearly marked with signage;

c) traffic should be suitably controlled;

d) traffic corridors should be kept free of all obstacles such as goods, dunnage and gear.

FMT argues that paragraph 4 of section 14.3.4 (which should probably read 14.3.5) of the O.S.H.M. is a procedure that cannot be applied to a conventional and bulk goods terminal. In fact, this procedure was not applied to sections 48 and 49 of the port. However, the union argues that the procedure that the safety officer wants introduced could have resembled the procedure described above. In short, it appears that there may be a possibility of developing a similar procedure for a conventional and bulk goods terminal. I will not, however, dwell on this point since, in my opinion, these matters come within the jurisdiction of the safety officer under subsection 145(1) of the Code. What I do note is that these directions have nothing to do with an immediate danger as contemplated by the Code.

Item #10: Managers and employees use the running boards of materials handling equipment to travel from one place to another on the wharf.

Observing someone moving from one place to another using the running board of a materials handling vehicle does not automatically mean that this person will be injured immediately. It is clear that this practice cannot be tolerated. If the employer does not protect the safety of its employees, it will be held responsible. As the safety officer pointed out in his investigation report, this practice is prohibited by subsection 14.30(1) of the Regulations, which reads as follows:

14.30 (1) Motorized or manual materials handling equipment shall not be used for transporting an employee and no employee shall so use the equipment unless the equipment is specifically designed for that purpose.

In the present case, the safety officer reported that, on December 4, 1997, he observed an employee using the running board of motorized equipment to travel from one place to another. Had the safety officer felt that this practice could reasonably be expected to cause injury to the employee immediately, he should have intervened at the precise moment when he observed the employee on the running board and not later when issuing a series of directions to the employer. There was no longer a danger at that point.

This provision also applies to the employee. An employee who engages in such a dangerous practice does so by his own choice and must also be held responsible for such behaviour. Paragraph 126(1)(b) of the Code requires every employee, while at work:

b) [to] follow prescribed procedures with respect to the safety and health of employees;

It should also be remembered that when an employee uses the running board of materials handling equipment to travel from one place to another, he is incurring not only his liability, but also that of the operator who allows the employee to engage in this practice. The operator has received training that prohibits this practice.

As for the foreman who stated he had used the running board of materials handling equipment to travel from one place to another, I am unable to conclude that this situation constitutes a condition that could reasonably be expected to cause injury to the employee during the safety officer’s investigation. The officer did not observe the event in question and he cannot therefore conclude that a danger within the meaning of the Code existed at the time. He is not therefore able to take immediate action to protect the person in question. The danger had already occurred. However, it is in the employer’s interest to ensure that such a practice does not occur. If it does, the employer must intervene to stop it.

Item #11: The mirror on the right side of lift truck no. 9560 is broken and cannot be used while the lift truck is travelling in reverse.

The employer withdrew its request to review this item. No change will therefore be made to this direction.

Decision: For all the above-mentioned reasons,I RESCIND the directions or item nos. 1 to 10 inclusive of direction 145(2)(a) of December 8, 1997 issued by safety officer Alain Messier to Federal Marine Terminals. Item no. 11 of this direction remains intact.

B. DIRECTION 145(2)(a) AND (b) OFDECEMBER 12, 1997

The left rear tires of materials handling equipment, specifically lift truck nos. 9560 and 1024, are badly worn, which may cause them to burst and result in the loss of control of this equipment. This poses a risk of employees being crushed.

On January 9, when the safety officer was doing inspections of 25-ton lift truck no. 9560, he noticed that the rear tires of this lift truck and of another lift truck nearby were badly worn. The safety officer did not observe these vehicles in operation. He did not gather any objective information indicating that an employee was going to be injured at that point unless he took action to protect the employee. In fact, the safety officer indicated that the badly worn tires may burst and result in a loss of control of this equipment. I agree with the safety officer on this point. However, the risk of the tires bursting and the possibility of losing control of the equipment are hypothetical risks. This risk does not therefore meet the definition of danger as contemplated by the Code.

Decision: For all the above-mentioned reasons, I RESCIND direction 145(2)(a) and (b) of December 12, 1997 issued by safety officer Alain Messier to Federal Marine Terminals.

C. DIRECTION 145(2)(a) AND (b) OF DECEMBER 18, 1997

The preventive measures relating to the direction of December 8, 1997 have not all been taken, with the result that employees are at risk of being crushed by materials handling equipment during materials handling operations.

Because this direction applies solely to the above-rescinded directions, I am also obliged to rescind it because it no longer has any basis in law.

Decision: For all the above-mentioned reasons, I RESCIND direction 145(2)(a) and (b) of December 18, 1997 issued by safety officer Alain Messier to Federal Marine Terminals.

Decision rendered on April 29, 1999

Serge Cadieux

Regional Safety Officer

APPENDIX A

IN THE MATTER OF THE CANADA LABOUR CODE

PART II ‑ OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPH 145(2)(a)

On December 3 and 4, 1997, the undersigned safety officer conducted an investigation into the death of Mr. Joseph Ronci on December 3, 1997 in the workplace operated by FEDERAL MARINE TERMINALS, an employer subject to Part II of the Canada Labour Code, located at the west end of SHED 49 in the PORT OF MONTREAL, MONTREAL, QUEBEC.

The said safety officer believes that the following conditions that exist in the workplace constitute dangers to an employee at work:

Employees, managers and persons having access to the workplace are at risk of being crushed by moving materials handling equipment when:

1. Materials handling equipment operators do not have an unobstructed view of the area in which their equipment must operate and are not directed by a signaller.

2. Loads that exceed the width of the forklift trucks are handled above the heads of pedestrians.

3. Materials handling equipment is not clear of snow and the operators’ view is obstructed while travelling in reverse.

4. In the parking area outside the gate, materials handling equipment transports loads and operators do not have an unobstructed view of the area and are not directed by a signaller while employees and persons having access to the materials handling area are walking to their automobiles or towards the wharf.

5. Materials handling equipment is not fitted with an audible warning device that automatically operates while the equipment is travelling in reverse.

6. Pathways are not provided for the exclusive use of pedestrians.

7. The majority of employees, managers and persons who have access to the handling area do not wear a high-visibility vest.

8. There is no procedure for ensuring the safe movement of materials handling equipment.

9. There is no procedure for ensuring the safe movement of pedestrians.

10. Managers and employees use the running boards of materials handling equipment to travel from one place to another on the wharf.

11. The mirror on the right side of lift truck no. 9560 is broken and cannot be used while the lift truck is travelling in reverse.

Accordingly, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a) of Part II of the Canada Labour Code, to protect the persons in your employ against these dangers immediately.

Issued at Montreal, this 8th day of December 1997.

ALAIN MESSIER

Safety Officer

1841

TO: FEDERAL MARINE TERMINALS

Bureau 3500

1000, de la Gauchetière Ouest

Montréal, Québec

H3B 4W5

APPENDIX B

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 December 9, 1997, the undersigned safety officer conducted an investigation in the workplace operated by FEDERAL MARINE TERMINALS, an employer subject to Part II of the Canada Labour Code, located at the east end of SHED 42, in the PORT OF MONTREAL, MONTREAL, QUEBEC.

The said safety officer believes that the following condition that exists in the workplace constitutes a danger to an employee at work:

The left rear tires of materials handling equipment, specifically lift truck nos. 9560 and 1024, are badly worn, which may cause them to burst and result in the loss of control of this equipment. This poses a risk of employees being crushed.

Accordingly, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a) of Part II of the Canada Labour Code to protect the persons in your employ against this danger immediately.

You are ALSO HEREBY PROHIBITED, pursuant to paragraph 145(2)(b) of Part II of the Canada Labour Code, from using the materials handling equipment to which notices of danger nos. 6540 and 6559 were affixed pursuant to subsection 145(3) of Part II, until these directions have been implemented.

Issued at Montreal, this 12th day of December 1997.

ALAIN MESSIER

Safety Officer

1841

TO: FEDERAL MARINE TERMINALS

Bureau 3500

1000, de la Gauchetière Ouest

Montréal, Québec

H3B 4W5

APPENDIX C

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 December 17, 1997, the undersigned safety officer conducted an investigation in the workplace operated by FEDERAL MARINE TERMINALS, an employer subject to Part II of the Canada Labour Code, located in sections 48 and 49 of the PORT OF MONTREAL, MONTREAL, QUEBEC.

The said safety officer believes that the following condition that exists in the workplace constitutes a danger to employees at work:

The preventive measures relating to the direction of December 8, 1997 have not all been taken, with the result that employees are at risk of being crushed by materials handling equipment during materials handling operations.

Accordingly, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a) of Part II of the Canada Labour Code, to protect the persons in your employ against this danger immediately.

You are ALSO HEREBY PROHIBITED, pursuant to paragraph 145(2)(b) of Part II of the Canada Labour Code, from conducting materials handling operations using materials handling equipment, in sections 48 and 49 and in shed 49, places in respect of which notice of danger no. 6551 was posted under subsection 145(3) of Part II, until these directions have been implemented.

Issued at Montreal, this 18th day of December 1997.

ALAIN MESSIER

Safety Officer

1841

TO: FEDERAL MARINE TERMINALS

Bureau 3500

1000, de la Gauchetière Ouest

Montréal, Québec

H3B 4W5

SUMMARY OF THE REGIONAL SAFETY OFFICER’S DECISION

Decision no.: 99-010

Applicant: Federal Marine Terminals, a subsidiary of Fednav Ltd.

Montreal, Quebec

Respondent: Syndicat des débardeurs

and

International Longshoremen’s Association

KEY WORDS: Real and immediate danger, fatal accident, materials handling area, materials handling equipment, pedestrians, unobstructed view, audible warning device, pathways, high-visibility vest, procedure for the safe movement, running board, tires, risk of being crushed, limited view.

PROVISIONS:

Code: 126(1)(b), 145(1), 145(2) (a) and (b), 146(3)

Regulations: 12.13, 14.16(1) and (2), 14.30(1), 14.34(2), 14.44

SUMMARY: On December 3, 1997, a tragic accident occurred in the Port of Montreal while an employee was walking across the materials handling area of FMT, on his way to the wharf where work awaited him. At the same time, the operator of a piece of materials handling equipment was travelling in the same direction as the employee on foot. The operator did not see the employee and struck and crushed him with his vehicle. The safety officer investigated on the day of the accident and observed that the forks of the lift truck were raised one metre off the ground, that 22 centimetres of snow had accumulated on the rear of the lift truck, which obstructed the operator’s field of vision while the lift truck was travelling in reverse, and that the mirror on the right side of the lift truck was broken and could not be used while the equipment was travelling in reverse. The following day, the safety officer continued his investigation and made the following observations:

·no pathway had been provided for the exclusive use of pedestrians;

·no signaller or signal light controlled traffic;

·the running board of a piece of materials handling equipment was used by an employee to travel from one place to another;

·a foreman stated that he had used the running board of a piece of materials handling equipment to travel from one place to another;

·in the parking area north of the fence, goods were being handled using lift trucks and were being stored helter-skelter amidst vehicles and persons having business in sections 48 and 49; operators did not have an unobstructed view of the area and were not directed by a signaller while employees and persons having access to the materials handling area were walking to their automobiles or towards the wharf;

·when the operators of the 25-ton lift trucks drove forward, without a load, they kept the forks approximately one metre off the ground, and this obstructed their view;

·loads that exceeded the width of the lift trucks were being handled above the heads of persons on the ground in the parking area and on the wharf;

·a number of lift trucks were not fitted with an audible warning device that automatically operates while the vehicle is travelling in reverse; and

·foremen, persons having access to the materials handling area and the majority of employees were not wearing a high-visibility vest.

The safety officer decided that all these conditions constituted dangers within the meaning of the Code and issued the employer an oral direction under paragraph 145(2)(a) on December 4, 1997 and confirmed this direction in writing at the conclusion of his investigation, on December 8, 1997.

On December 9, 1997, while present in the same workplace, the safety officer noted that the tires of two pieces of materials handling equipment were badly worn. He felt that this condition could cause an accident and issued the employer another oral direction under paragraphs 145(2)(a) and (b) of the Code and confirmed this direction in writing on December 12, 1997.

When he returned to the workplace to determine whether the employer had complied with his directions, he discovered that the employer was not complying with the directions issued. He then issued the employer another oral direction under paragraphs 145(2)(a) and (b) du Code and confirmed this direction in writing on December 18, 1997.

At review, the regional safety officer concluded that the safety officer had observed and witnessed hazardous conditions, dangers in the general sense of the term, contraventions of the Code, but not dangers within the meaning of the Code. In no case was the danger immediate. For these reasons, the regional safety officer RESCINDED all the directions. He was obliged to do so because even though he acknowledged that a number of the conditions identified by the safety officer were contraventions of the Code, he did not have the power under section 146 of the Code to issue the employer new directions for contraventions.