Archived - Decision 05-039 Canada Labour Code Part II Occupational Health and Safety

This appeal made pursuant to subsection 129 (7) of the Canada Labour Code, Part II, was decided by Katia Néron, Appeals Officer.

Appearances

For the applicant
David C. Moore, Bellmore & Moore, Barristers & Solicitors

For the respondent
Patty Watts, Customer Service Manager
Air Canada, Toronto, Ontario

Health and Safety Officer
Robert Maklan
Human Resources and Skills Development Canada
Labour Program, Toronto, Ontario

[1] This case concerns an appeal that Eileen Bird and Larry Jolicoeur made on May 9, 2002, under subsection 129 (7) of the Canada Labour Code, Part II (the Code), against a decision of absence of danger rendered by health and safety officer (HSO) Robert Maklan on April 25, 2002.

[2] According to HSO Maklan's investigation report, on April 23, 2002, E. Bird and L. Jolicoeur, two customer sales and service agents, were asked to work in room P.A. M270A located in Terminal Two of the Lester B. Pearson International Airport, in Toronto, Ontario.

[3] At the time, E. Bird and L. Jolicoeur refused to work in room M270A because they believed that, without having a written assurance that this room was free of asbestos or fiberglass contamination, they could be exposed to asbestos or fiberglass and this constituted a danger for their health.

[4] As reported in HSO Maklan's report, the employee's description of the events for their refusals to work, were:

We respectfully request a written assurance that room M270A located in Mod Q of Terminal 2 is free of asbestos contamination. The GTAA publication entitled Terminal Two Asbestos Contaminated Areas dated April 27, 2001 does not show room M270A on its map. We would like someone in a position of authority to confirm in writing that there is no asbestos in room M270A and would like to have an independent company in to test this room for asbestos.

[5] Following the employer's unsuccessful effort to resolve the matter, HSO Maklan investigated on April 25, 2002, into E. Bird and L. Jolicoeur's refusals to work.

[6] HSO Maklan decided that a danger did not exist for E. Bird and L. Jolicoeur based on the following facts established during his investigation:

• as requested by Air Canada, an inspection and an air sampling were conducted in room P.A. M270A on April 25, 2002, by Lucy Carreiro from Ontario Environmental and Safety Network Ltd;
• L. Carreiro's inspection report indicated that:

• • there was no asbestos above the ceiling of room M270A;
  • non-asbestos spray applied as fireproofing;
  • fiberglass batting was found;
  • minor quantities of non-asbestos dust were found on ceiling tiles;
  • fiberglass insulation in ductwork appeared to be in good condition;
  • the environmental air monitoring collected using Phase Contrast Microscopy (PCM) techniques and subsequent analysis of the PCM air test using NIOSH method 7400 (counting rules 'A') yielded the followings results:

  • sampling for asbestos fibers reported concentrations well below the legal limit of 1f / cc for chrysotile or 0.1 f / cc for any other form of asbestos;
  • sampling for fiberglass reported concentrations of 0.0049 f /cc, an exposure well below the legal limit of 3 mg / m³ Particules Not Otherwise Specified-Respirable Fraction.

  • T. Harris Environmental Management (Environmental consultants) also conducted previous air monitoring at several locations in Terminal Two and sampling for asbestos fibers reported concentrations well below the legal limit.

  [7] HSO Maklan confirmed his decision of inexistence of danger in writing on April 25, 2002.

  [8] On August 8, 2002, the Appeals Office sent a letter to the applicants requesting them to provide all documentation that they intended to submit in support of their appeal and provide a copy of this information to the other party involved in the matter.

  [9] On January 12, 2005, both parties were informed in writing that the case would be decided, in accordance with subsection 146.2 of the Code, without a hearing and based on written submissions and the documentation on file.

  [10] According to David C. Moore, Counsel for E. Bird, in his letter submitted on February 15, 2004, E. Bird was appealing the decision of HSO Maklan because she believed that there was documentary evidence indicating that the test results in relation to the location in issue were inaccurate and/or incomplete. D.C. Moore also wrote that he would do a follow-up with the union representative who was previously involved in this matter to ascertain whether such documentation existed.

  [11] Between April and July 2005, the Appeals Office called D.C. Moore four times and left him a message to call back further to his letter of February 15, 2004, in which he was supposed to get back with some more documentation in support of the appeal.

  [12] Without receiving any response from D.C. Moore or any further applicants' submission, I decided, as already indicated to both parties in writing on January 12, 2005, to address the issue in the matter based on written submissions and the documentation already on file.

  ***********

  [13] The issue to be addressed in this case is whether or not HSO Maklan erred when he decided that a danger did not exist for E. Bird and L. Jolicoeur at the time of his investigation. For this, I must consider the definition of danger found in the Code as well as the facts and the circumstances in the case.

  [14] Subsection 122 (1) of the Code defines danger as follows:

  "danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.

  [15] In accordance with the definition of danger in the Code, I must find that there was a danger for E. Bird and L. Jolicoeur if the existing or the potential hazard could reasonably have been expected, in the circumstances, to cause them illness before the hazard or condition could have been corrected, or the activity altered.

  [16] In the present case, the potential hazard for E. Bird and L. Jolicoeur was to be exposed to asbestos and fiberglass at concentrations that could reasonably cause them illness.

  [17] In the present case, HSO Maklan determined that the employer appointed a qualified person working for Ontario Environmental and Safety Network Ltd to collect air samples from room P.A. M270A.

  [18] According to the qualified person's report, the results of the air samples for asbestos, whichever type, and fiberglass were well below the legal limit for worker exposure.

  [19] Without having any evidence that these test results were inaccurate and/or incomplete and based on the information given in the inspection report, there was no evidence that the potential hazard was present in room M270A for the employees or that there was a reasonable possibility that the employees would be exposed to a level of concentration of asbestos, whichever type, or fiberglass which could cause them illness.

  [20] Given the definition of danger explained above and the facts submitted in this case, I agree with HSO Maklan's decision. The evidence does not support that a danger existed for E. Bird and L. Jolicoeur at the time of HSO Maklan's investigation of their refusals to work.

  [21] Therefore, I confirm the decision that health and safety officer Malkan rendered on April 25, 2002, that there was no danger for E. Bird and L. Jolicoeur to work in their work place.

  
  
  
  

  ____________________
  Katia Néron
  Appeals Officer

  ---

  Summary of Appeals Officer's Decision

  Decision No.: 05-039

  Applicants: Eileen Bird, Larry Jolicoeur

  Respondent: Air Canada, Toronto (Ontario)

  Key Words: Refusal to work, decision of absence of danger, asbestos or fiberglass potential contamination in the work place

  Provisions:

  Canada Labour Code 129 (7) Regulation

  Summary:

  The applicants appealed a decision of absence of danger issued by a health and safety officer following his investigation of their refusals to work. The appeals officer confirmed the decision of absence of danger rendered by the health and safety officer.