Archived information

Archived information is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Archived

This page has been archived on the Web.

Cast Terminal Inc.

employer

and

Longshoremen’s Union

Local 375

union

and

Jessica Tran

safety officer

Decision No. 01-014

June 15, 2001

This case was heard by Michèle Beauchamp, regional safety officer, in Montreal, Quebec, on March 6, 2001.

Appearances:

For the employer:

M^e Gérard Rochon, Counsel

Guy Provost, Operations Manager, Cast Terminal Inc.

André Lachaine, Director, Health and Safety, Maritime Employers Association

For the union:

André Proulx, member of the health and safety committee

Daniel Trembaly, union health and safety advisor

[1]This case concerns a request made pursuant to section 146 of the Canada Labour Code, Part II, by M^e Gérard Rochon, on behalf of Cast Terminal Inc., for a review of a direction (in appendix) issued on August 24, 2000 by Jessica Tran, safety officer, Labour Program, Human Resources Development Canada.

[2]The direction and request for a review were made before the coming into force of the Canada Labour Code, Part II (the Code), as amended, on September 30, 2000. It will consequently be dealt with pursuant to the Code in application before September 30.

[3]On August 15, 2000, safety officer Jessica Tran conducted an inquiry into a refusal to work at Cast Terminal Inc. by André Proulx, operator of a materials-handling machine. André Proulx had refused to work because he believed that piling more than two containers at the intersections of the traffic paths in the terminal constituted a danger. Safety officer Tran met the parties to discuss the reasons for the refusal, but was unable to observe any piling activities, which had ended for the day.

[4]Safety officer Tran explained at the hearing that she continued her inquiry the following day, August 16, and that she toured the premises with the parties in a vehicle driven by the operations manager, Guy Provost. The reasons for the refusal were discussed. Safety officer Tran concluded that there was no danger within the meaning of the Code resulting from the piling of containers at the intersections of the traffic paths, which she confirmed in writing to the parties. The employee did not dispute this decision regarding the lack of danger.

[5]Safety officer Tran reported that, after she had given her decision to the parties, she was invited to tour the work place by employees Proulx and Tremblay to check the signage, which she did. She found that the traffic rules were not being followed and the signage was inadequate. For example, she noted that vehicles were entering an intersection without having good visibility, without stopping and without slowing down sufficiently to avoid a possible collision.

[6]Safety officer Tran informed the parties that she intended to issue a direction on the subject, but that she would discuss it first with the Labour Program’s safety officer responsible for the Port of Montreal sector in order to standardize the safety officers’ interventions in the Port of Montreal. Safety officer Tran also knew that this safety officer had issued a direction to Cast Terminal Inc. in January 1998 regarding traffic safety rules in the terminal, a direction with which the employer had complied.

[7]On August 24, 2000, safety officer Tran issued the following direction to Cast Terminal Inc.:

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

1.Section 124 of the Canada Labour Code, Part II.

The employer is not ensuring that traffic rules are well understood and followed by employees, drivers and visitors.

2.Section 124 of the Canada Labour Code, Part II.

Traffic rules are poorly defined, which presents a risk of collision between the various vehicles on the travel paths where they meet at the ends of the piles.

[8]Safety officer Tran reported at the hearing that she had issued the first point in her direction because she had seen a driver (whom she could not identify) drive down the centre of a two-way traffic path. Moreover, although she had not seen any employees or visitors break the traffic rules, she assumed that no one followed the direction of the arrows painted on the roadway after having seen Mr. Provost himself break one of these safety rules when he was driving his vehicle. She admitted that she had seen the traffic rules posted at the entrance to the work place and that she knew that the employees had had adequate training. However, she did not question any employees to discover whether they understood the traffic rules in effect.

[9]As for the second point in her direction, safety officer Tran said that, for her, the expression “traffic rules” corresponded in fact to the “signage” and that she considered the signage to be inadequate. For example, at the end of the piles of containers, the arrows painted on the roadway could not be seen until a driver had entered the traffic path. Moreover, she did not see the traffic rules posted except at a location on the west side of the Dauphin pile. She said at the hearing that what she really wanted to accomplish with her direction was to have the employer define the existing rules more clearly.

[10]In response to questions from M^e Rochon, she admitted having issued the direction to the employer for a contravention of the general duty to “ensure that the health and safety at work of every person employed by the employer is protected” as set out in section 124 of the Code because, according to her, no section of the Canada Occupational Safety and Health Regulations (COSHR) corresponded exactly to the situations that she observed.

[11]In the memorandum that he submitted for the hearing, M^e Rochon said at the outset that the employer had all the necessary measures in place to “ensure that the health and safety at work of every employee was protected”, as stipulated in section 124 regarding the general duty of the employer.

[12]According to M^e Rochon, safety officer Tran’s direction was too vague for the employer to know exactly what infractions he had committed and what remedial action was being sought. In M^e Rochon’s opinion, this vagueness showed that the employer did comply with the provisions of Part XIV of the COSHR on the handling of materials, specifically with respect to certain subjects covered in the direction by safety officer Tran, namely: subsection 14.45(1) on passageways, section 14.25 on signals required during handling, section 14.38 on warning signs at the approaches to materials handling areas, section 14.50 on the storage of materials and section 14.23 on the training of operators.

[13]Moreover, according to M^e Rochon, safety officer Tran did not take into account the fact that she had been informed that the terminal was in the process of being enlarged and that the roadway had just been paved. However, he also pointed out that the work had been completed, including the necessary signage and roadway markings.

[14]With respect to the first point in the direction, M^e Rochon maintained that the safety officer did not question the existence of traffic rules, but their understanding by employees, visitors and drivers. However, the traffic rules in place at Cast Terminal Inc. are conveyed by means of directions painted on the roadway, speed bumps and signs that indicate stops, direction, speed limits and parking restrictions. He said that these rules were clear, used throughout the port and required no explanation. Moreover, he added, safety officer Tran did not question any employees about their understanding of the rules, nor identify specifically the visitors or drivers who broke the rules.

[15]As for the second point in the direction, M^eRochon maintained that it applied only to the ends of the piles, where the traffic paths met, and that safety officer Tran did not specify in any way what she meant by poorly defined rules. According to M^e Rochon, the some forty photographs that he presented at the hearing to prove that there were traffic rules and signs show that these rules were very clearly defined and left no room for interpretation.

[16]Mr. Provost , operations manager at Cast Terminal Inc., added that the traffic direction in the container alleys is dictated by the fact that the doors of the containers must be turned toward the west so that they are toward the back when clients unload the containers. He pointed out that the configuration in the terminal varies, within certain specific limits, according to the number of containers to be loaded or unloaded and that it is not desirable to have rigid and unchangeable rules. He also said that the traffic rules were established in cooperation with the local safety and health committee.

[17]For his part, Daniel Tremblay, union health and safety advisor, supported the security officer’s direction in his memorandum and at the hearing. He said that the employer seemed to think that having rules and posting them exempts him from the responsibility of enforcing them. He also said that officer Tran would be the best person to explain the circumstances that led to the issuing of these directions.

***

[18]Subsections 146(1) and 146(3) of the Canada Labour Code, Part II, define the role of the regional safety officer with respect to a request for a review of a direction. These provisions read:

146(1). Any employer, employee or trade union that considers himself or itself aggrieved by any direction issued by a safety officer under this Part may, within fourteen days of the date of the direction, request that the direction be reviewed by a regional safety officer for the region in which the place, machine or thing in respect of which the direction was issued is situated.

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.

[19]In support of his employer’s defence, M^e Rochon presented at the hearing some forty 8 ½ by 11 photographs taken at Cast Terminal Inc. Together these photographs presented an overview of the terminal. They were directly related to the two points in safety officer Tran’s direction and accurately showed the location of the stop, directional, speed limit and parking restriction signs, the directions painted on the roadway and the speed bumps.

[20]When questioned at length by M^e Rochon regarding these photographs, safety officer Tran was able to remember, often hesitantly, the location of only some twenty of the photographs. All the photographs that she identified, like all the other photographs, supported the employer’s defence to the effect that the signage and traffic rules were clearly present in the work place.

[21]Safety officer Tran alleged that the employer had not ensured that the employees, visitors and drivers clearly understood and followed the traffic rules. However, she testified at the hearing that she did not question the employees, visitors or drivers about their understanding of the rules, nor did she identify or question that sole driver that she saw driving down the centre of a two-way roadway.

[22]At the hearing, safety officer Tran did not succeed in showing with the complete certainty that she should have demonstrated that she was able not only to identify exactly where the contraventions took place, but also, when issuing her direction, clearly indicate them to the employer so that he could correct them.

[23]With respect to the fact that safety officer Tran issued her direction for contravention of section 124 of the Code, I refer to what was said on the subject by Serge Cadieux, regional safety officer, in the Western Stevedoring Co. (decision 97-011) case, an opinion with which I wholly agree. He said:

… application [of section 124] … [does not mean] that the obligation on employers in section 124 is absolute with no means of defence, or that section 124 can be used frivolously by safety officers. Specifically, paragraph 148.(6)(e) of the Code states that it is a defence in respect of any alleged violation of section 124 for the person to prove that he or she exercised due care and diligence to ensure the safety and health at work of every person employed by the employer is protected. Therefore, in respect of section 124, the exercise of due care and diligence is the compliance standard that employers must meet as opposed to the specific prescriptions found in the COSHRs for violations under section 125.

[24]With respect to the arguments that the safety officer presented at the hearing to justify her direction, the evidence that M^e Rochon submitted to support his defence of the employer is such that I am forced to conclude that Cast Terminal Inc. had sufficient traffic rules in place to fulfil its general duty under section 124 of the Canada Labour Code, Part II, at the time that the direction was issued.

[25]Therefore, I hereby rescind the direction issued to Cast Terminal Inc. on August 24, 2000 by safety officer Jessica Tran.

Michèle Beauchamp

Regional Safety Officer

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYER UNDER SUBSECTION 145(1)

On August 15 and 16, 2000, the undersigned safety officer conducted an inquiry in the work place operated by CAST AMERIQUE DU NORD (1983) INC., being an employer subject to the Canada Labour Code, Part II, at section 77 of the Port of Montreal, Quebec, the said work place sometimes being known as Cast Terminal Inc.

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

1. Section 124 of the Canada Labour Code, Part II.

The employer is not ensuring that traffic safety rules are well understood and followed by employees, drivers and visitors.

2. Section 124 of the Canada Labour Code, Part II.

Traffic rules are poorly defined, which presents a risk of collision between the various vehicles on the traffic paths where they meet at the end of the piles.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of the Canada Labour Code, Part II, to terminate the contravention no later than September 8, 2000.

Issued at Montreal, this 24^th day of August 2000.

JESSICA TRAN

Safety Officer No. Ac8864

To: CAST TERMINAL INC.

305 CURATTEAU STREET

MONTREAL, QUEBEC

H1L 6R6