Archived - 1999 OHSTC 016

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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.: 99-016

Applicant:Canadian Auto Workers

Represented by: R. W. Bourrier

Respondent: Canadian National Railway

Represented by: D.N. Kruk, Counsel

Mis-en-cause: T. Mckay

Safety Officer

Human Resources Development Canada

Before:Douglas Malanka

Regional Safety Officer

Human Resources Development Canada

Background:

On February 10, 1999, safety officers at Human Resources Development Canada conducted an inquiry into a fatal accident at the Canadian National Railway (hereafter referred to as CN) Symington Yards. Following their preliminary investigation of the occurrence, a direction was issued to CN pursuant to paragraph 145.2(a)[1] of the Canada Labour Code (hereto referred to as the Code or Part II). The direction required the employer to protect any person from the danger immediately. See Appendix for the direction.

On February 22, 1999, the Canadian Auto Workers (CAW) requested, pursuant to section 146 of the Code, that the direction be reviewed by a Regional Safety Officer. A hearing was held on April 28, 1999, in Winnipeg, Manitoba.


Safety Officer:

On February 10, 1999, at 09:45 hours, safety officer McKay learned that a serious accident had occurred at approximately 09:15 hours at the CN Symington Yards. He and safety officer Shultz proceeded immediately to investigate the accident and arrived at the Symington Yards at approximately 11:10 hours that day. They subsequently learned that the injured employee,

Mr. Harold Maisey, had succumbed to his injuries.

The safety officers investigated at the accident site and conducted preliminary interviews. They also interviewed Mr. Nello D’Ottavio, the other employee involved in the accident and only witness. From their preliminary findings, they established that Mr. D’Ottavio and Mr. Maisey were assigned to repair a rail car which was spotted on a curved portion of the railway track. When the two employees arrived, they decided to move the rail car to a straight portion of track using their truck and a chain. Mr. Maisey connected the chain to the truck and the rail car and walked along beside the rail car as Mr. D’Ottavio operated the vehicle in reverse gear and pulled the rail car back. Mr. D’Ottavio halted his vehicle when he saw a hydroelectric post along the track, but the rail car continued to proceed along. Mr. Maisey attempted to remove the chain from the rail car to uncouple the two vehicles but was crushed between the chain and the rail car before he was able to disconnect the chain from the rail car. Safety officer Mckay said that he learned that this procedure was an on-going practice at CN, and that the hand brake on the rail car was not engaged at the time of the accident.

The next day the safety officers met with their superiors and, based on the preliminary findings, decided that the accident was evidence that there was a danger to employees required to perform this work. Safety officer McKay explained that he followed departmental directives relative to issuing directions pursuant to subsection 145.(2) of the Code and opted to specify the danger in the direction as opposed to relating the danger to violations under the Code or the Canada Occupational Safety and Health (COSH Regulations). He said that this was because the direction was needed immediately and it was too early to determine whether there had been violations to the Code or the COSH Regulations. He subsequently clarified to CN that his direction applied in respect of all operations within the La Verendre Division which includes the area bounded by the perimeter roads surrounding the city of Winnipeg.

Following his direction safety officer McKay learned that, prior to the accident, there were no written procedures at CN for moving rail cars and that employees had not received formal training on how to carry out the work.


Testimony:


Mr. J. McQuarry testified on behalf of the Applicant. He indicated having over 20 years of experience as a Car Mechanic. He confirmed never having seen written procedures or heard of formal training relative to towing a rail car with a truck and chain. He opined that it is not safe to tow a rail car in this manner because there is nothing to prevent the uncontrolled motion of the rail car, and because there is no warning prior to the failure of a chain.

Respondent:


Mr. W Nohlgren, Manager, Car Maintenance System, CN, testified on behalf of the respondent, CN.I retain the following from his testimony.

Mr. Nohlgren joined CN in 1972 as an employee in the engineering section and progressed into management positions over the years.As Car Maintenance System Manager, he is responsible for the maintenance of the freight rail car fleet and shops, and for implementing CN practices and procedures related to the work carried out under his control.

He described CN’s finding relative to the accident using sketches representing the arrangement of the rail car and truck involved in the accident. This essentially confirmed safety officer Mckay’s description of events. Mr. Nohlgren confirmed that, prior to the accident, CN did not have formal written procedures or training relative to the practice of moving rail cars using off-track vehicles and non rigid or flexible connectors. He pointed out that the practice is only used where there is no locomotive or on-rail vehicle available to move the rail car, and that car maintenance workers receive on-the-job peer training and experience in the absence of formal procedures or training. He confirmed that the written procedures developed by CN following the accident formalize past practice, and opined that the practice is safe if employees follow the written procedures established.

Mr. Nohlgren commented on a memorandum submitted earlier in the hearing by Mr. Bourrier regarding a CN safety and health steering committee decision to permanently cease the use of chains to move rail cars. He testified that, following its distribution, he spoke to Mr. Ferrusi, its author. According to

Mr. Ferrusi, the decision, following the accident, to cease the use of chains was taken to accommodate the union representatives participating in the meeting and not to correct an unsafe practice.


Summations:

Mr. Bourrier argued the safety officer erred when he issued his direction pursuant to paragraph 145.(2)(a) of the Code on February 11, 1999, and that it should be varied to refer to paragraph 145.(2)(b)[2] and subsections 145.(3)[3], “Posting notice of danger” and 145.(4)[4] “Cessation of use.” According to him, paragraph 145.(2)(a) only requires the employer to take measures to protect the safety and health of employees, while 145.(2)(b) requires the employer to cease the activity completely. Mr. Bourrier complained that CN’s response to the direction under paragraph 145.(2)(a) was to formalize the very practice that led to the fatal accident. He stated that neither the union or safety and health committee was consulted in the drafting of the procedures for using off-track motor vehicles.

Mr. Bourrier noted that proper procedures are currently in existence for moving rail cars using properly designated on-track equipment consisting primarily of locomotives and trackmobiles which are manufactured and designed to move rail cars. He held that off-track motor vehicles are incapable of controlling the movement of rail cars, especially where non-rigid connectors are used, and their use should be prohibited. He added that rail car hand brakes are not for controlling the movement of rail cars. He insisted that senior CN management participants agreed at the CN safety and health steering Committee meeting held following the accident to permanently cease the use of chains for moving rail cars. He opined that straps and cables are similar to chains.


Mr. Bourrier additionally argued that the direction should be varied to direct CN to comply with paragraphs 125.(i)[5] and (q)[6] of the Code, and subsection 14.3(1), section 14.15 and paragraph 14.23.(1)(c) and of the COSH Regulations[7].

Mr. Kruk said that the direction issued in the circumstances was reasonable.He held that it would have been unreasonable for safety officer Mckay to have made a finding that training was the cause of the accident, or that there were other breaches of the Code or COSH Regulations following a preliminary investigation of the accident.

He reiterated that CN considers the practice to be safe under all conditions and that employees received informal on-the-job training regarding the practice. He held that an off-track motor vehicle is incapable of stopping the movement of a rail car regardless of what type of connector is used, and this applies to trackmobiles. They weigh too little for this. He insisted that rail car hand brakes are used in the industry to control the movement of rail cars.

Finally, Mr. Kruk stated that the only difference between paragraph 145.(2)(b) and (2)(a) of the Code is that paragraph 145.(2)(a) applies where the safety officer considers that the danger can be dealt with immediately, while

paragraph 145.(2)(b) applies where the safety officer decides that the danger cannot be dealt with immediately.He added that CN had already posted safety officer Mckay’s direction.


Decision:

The issue before me in this review is whether a “danger” as defined under the Code existed at the time of safety officers’ investigation of the fatal accident that occurred on February 10, 1999, and if so, whether I should vary or confirm the direction.

For deciding this, I indicated to parties that I would have to consider the description of the danger specified in safety officer Mckay’s direction, the proper authority for the direction, and whether CN was in violation of other provisions in the Code and COSH Regulations. The latter being to confirm the description of the danger in the direction.

To decide if a “danger” existed under the Code, it is necessary to look at section 122.(1) of the Code which defines the term “danger”, and applicable case law. According to Section 122.(1):

[My underline.]

With regard to applicable case law, reference is made to the unreported decision of Regional Safety Officer, Serge Cadieux, in the case of Terminus Maritimes Fédéraux, Decision 99-010. In his decision, Mr. Cadieux wrote: [the following is translated from French]

“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).


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 “imminent danger”[8], 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 cannot[9] conclude 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.”

In the case at hand, safety officer Mckay testified that the danger was the hypothetical “possibility” of employees conducting this work becoming caught or crushed in the pinch point or entrapment point of the chain, the rail car and the truck. However, at the time of his investigation of the accident, no-one before him was in the process of, or about to, use an off-track motor vehicle and non-rigid connector for moving a rail car. Therefore, based on the definition of “danger” in the Code, applicable case law and specific facts in the case, a “danger” under the Code did not exist because the danger perceived by the safety officer McKay was not real, immediate or in existence at the time of his investigation. The mere occurrence of an accident or injury is not proof that a “danger” under the Code exists.

This, however, does not oppose the safety officers’ view that there was danger[10] of reoccurrence of the accident and injury relative to ordinary dictionary meaning of the term. In fact, safety officer Mckay testified that he and safety officer Shultz felt strongly that there was a possibility of someone else being entrapped and crushed between the chain and the rail car or truck. However, to address their concerns, it was necessary for the safety officers to determine if there were safety deficiencies related to the CN practice, and if so, to link them to violations under the Code. If violations were or are found, subsection 145.(1) of the Code authorizes either safety officer to direct CN to cease the contravention and to specify a time period for compliance, which includes immediately.

In this regard, Mr. Bourrier argued that the employer was in violation of paragraphs 125.(i) and (q) of the Code, and subsection 14.3(1), section 14.15 and paragraph 14.23.(1)(c) and of the COSH Regulations in connection with the practice, and that these violations should be addressed in the direction issued by safety officer Mckay on February 11, 1999. However, as Regional Safety Officer, I am not empowered by section 146 of the Code to issue a new direction under subsection 145.(1). This is a matter for the safety officer’s determination.

For the reasons specified herein, I hereby rescind the direction safety officer Mckay issued to CN on February 11, 1999, pursuant to

paragraph 145.(2)(a) of the Code.

Decision rendered on July 15, 1999.

Douglas Malanka

Regional Safety Officer

APPENDIX

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

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

On February 10th, 1999, the undersigned safety officer conducted an inquiry in the work place operated by CANADIAN NATIONAL RAILWAY, being an employer subject to the Canada Labour Code, Part II, at SYMINGTON CAR SHOP, 821 LAGIMODIERE BLVD, WINNIPEG, MANITOBA, the said work place being sometimes known as Symington Yards.

The said safety officer considers that a condition in any place constitutes a danger to an employee while at work:

The connecting of a road vehicle to a rail car by the use of a chain for the purpose of moving the rail car presents a danger to those employees engaged in this work.

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

Issued at Winnipeg, this 11th day of February 1999.

Terry McKay

Safety Officer

1877

To: CANADIAN NATIONAL RAILWAY

SYMINGTON CAR SHOP

831 LAGIMODIERE BLVD

WINNIPEG, MANITOBA

R3C 2Z6

SUMMARY OF REGIONAL SAFETY OFFICER DECISION


Decision No.:
99-016

Applicant:Canadian Auto Workers

Respondent: Canadian National Railway

KEY WORDS:

Danger, fatality, rail car mechanic, off-track motor vehicle, chains, straps, cables, non-rigid connectors, trackmobiles, procedures, training.

PROVISIONS:

Code: 122.(1), 125(i) and (q), 145.(1), (2), (3) and (4), 146

Regs: 14.3(1), 14.15 and 14.23(1)(c)

SUMMARY:

A Canadian National Railway (CN) employee engaged in moving a rail car to another site using an off-track motor vehicle and chain was fatally injured when he became entrapped by the chain and the rail car. Following their preliminary investigation, safety officers decided that the accident established that a danger under the Canada Labour Code (Code) existed in connection with the practice at CN. CN was ordered pursuant to paragraph 145.2(a) of the Code to protect any person from the danger immediately.

Upon review, the Regional Safety Officer established that a “danger” as defined under the Code did not exist at the time of the safety officer’s investigation and rescinded the direction.



[1] Paragraph 145.(2)(a) reads:

“145.(2)(a)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…”

[2] Paragraph 145.(2)(b) reads:

“145.(2)(b) 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.”

[3] Subsection 145.(3) reads:

“145.(3).Where a safety officer issues a direction under paragraph (2)(b), the officer shall affix to or near the place, machine or thing in respect of which the direction is made, a notice in such form and containing such information as the Minister may specify, and no person shall remove the notice unless authorized by a safety officer.

[4] Subsection 145.(4) reads:

“145.(4) Where a safety officer issues a direction under paragraph (2)(b) in respect of any place, machine or thing, the employer shall discontinue the use or operation of the place, machine or thing and no person shall use or operate it until the measures directed by the officer have been taken.

[5] Paragraph 125.(i) reads:

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

(i).ensure that the vehicles and mobile equipment used by the employees in the course of their employment meet prescribed safety standards;”

[6] Paragraph 125.(q) reads:

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

(q)...provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure the safety and health at work of that employee;”

[7] Canada Occupational Safety and Health Regulations, Part XIV:

“14.3(1) Motorized and manual materials handling equipment shall, to the extent that is reasonably practicable, be so designed and constructed that if there is a failure of any part of the materials handling equipment, that failure will not result in loss of control of the materials handling equipment or create a hazardous condition.”

“14.15 All motorized materials handling equipment shall be fitted with braking, steering and other control systems that

(a) are capable of controlling and stopping its movement and that of any hoist, bucket or other part of the equipment; and…”

“14.23(1)(c) Subject to subsection (2), every employer shall ensure that every operator of motorized materials handling equipment has been instructed and trained in the procedures to be followed for

…(c) its safe and proper use, in accordance with any instructions provided by the manufacturer and taking into account the conditions of the work place in which the operator will operate the materials handling equipment.”

[8] The original English Translation read, “danger immediate.” For proper translation, it should have read as indicated above. The original French text read, “Par conséquent, la définition ci-dessus qui a servie à remplacer l’expression «danger imminent»,…”

[9] The original English translation read, “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.” For proper translation, it should have read as indicated above.. The original French text read, “Une conséquence directe de cette conclusion est que lorsque l’agent de sécurité enquête suite à un accident, il ne peut conclure que la cause de l’accident constitue au moment de son enquête un danger au sens du Code et émettre une instruction pour danger.”

[10] Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 1998, defines the word “danger” to mean: “ …2: harm, damage, 3: exposure or liability to injury, pain, harm or loss …”

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