Archived - Decision: 07-044-S Canada Labour Code Part II Occupational Health and Safety

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Case No.: 2007-33

Interlocutory decisions
Decision No.: CAO-07-044 (S)

171817 Canada Inc. operating as Artic Sunwest Charter
appellant

and

Patrick Mugoni
respondent
___________________________
June 3, 2009

For the appellant
Lawrence W. Olesen, counsel for the appellant

For the respondent
Patrick Mugoni, employee representative on the workplace health and safety committee

CORRECTION OF DECISION

[1] The Appeals Officer rendered a decision in the present case on December 21, 2007.

[2] The decision contains spelling mistakes that need to be corrected.

[3] On the title page, in two places, the Respondent's name reads: Patrick Mugony

[4] It should have read: Patrick Mugoni

[5] At paragraph [12], the Respondent's name reads: Patrick Mugony

[6] It should have read: Patrick Mugoni

Canada Labour Code
Part II
Occupational Health and Safety

171817 Canada Inc. operating as Artic Sunwest Charter appellant and Patrick Mugony respondent ___________________________ December 21, 2007

This request for a stay was decided by Pierre Guénette, Appeals Officer, based on oral arguments provided by the parties on December 18, 2007 and on written submissions from the appellant on December 7, 2007.

For the appellant
Lawrence W. Olesen, counsel for the appellant

For the respondent
Patrick Mugony, employee representative on the workplace health and safety committee

[1] The present decision concerns a request for a stay in respect of the direction that health and safety officer (HSO) René Sheïr issued to the company 171817 Canada Inc. operating as Artic Sunwest Charter on November 21, 2007, under subsection 145(1) of Part II of the Canada Labour Code, (the Code).

[2] HSO Sheïr issued this direction following his investigation of a hazardous occurrence which took place in January 3, 2007, in the vicinity of Blatchford Lake Lodge, North West Territories, and resulted in the death of a pilot employed by 171817 Canada Inc. operating as Artic Sunwest Charter.

[3] HSO Sheïr’s direction states:

On November 15, 2007, the undersigned health and safety officer concluded an investigation of the Hazardous Occurrence which took place on January 3, 2007, in the vicinity of Blatchford Lake Lodge, NT, and resulted in the fatality of a Pilot employed by 171817 Canada Inc., 171817 Canada Inc. being an employer subject to the Canada Labour Code, Part II.

After completing the investigation, the said Health and Safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, have (sic) been contravened:

Paragraph 125. (1)(q) of Canada Labour Code Part II

“… provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work.”

The employer did not provide the employee with necessary supervision pertaining to Flight Preparation and Pre Flight Duties, such as: Flight Planning, Aircraft Loading, Carry On Baggage & Commissary and Weight and Balance Control. Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contraventions no later that December 20, 2007

Further, you are HEREBY DIRECTED, pursuant to paragraph 145 (1) (b) of the Canada Labour Code, Part II, to take steps, no later than December 20, 2007, to ensure that the contravention does not continue or reoccur.

Issued at Winnipeg, Manitoba, this 21^st day of November, 2007.

[4] The issue to be decided in the present case is whether or not there are substantive grounds justifying that I grant a stay in respect to HSO Sheïr’s direction to 171817 Canada Inc.

[5] To reach a decision, I have to consider the report of the health and safety officer and the arguments provided by both parties on the three fold tests to take into consideration on a stay application. Those criterions are based on the Metropolitan Stores Ltd. decision¹:

1. the seriousness of the issue to be tried;
2. the irreparable harm resulting from not granting the stay; and
3. the balance of inconvenience on who will suffer the greater harm from the granting or refusal of a stay, pending the decision on the merit of the case.

1	Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Docket 19609

[6] Furthermore, I asked that a fourth test be met, and that is in the alternative of complying with the direction does the appellant intend to do to protect the health and safety of the employees or any person who could be exposed to the danger identified by the health and safety officer.

Appellant’s arguments

[7] With regard to the first test, Lawrence W. Olesen (L. Olesen) argued that the employer has a serious issue to be tried because the direction is impossible to comply with, which is a disadvantage for the company. The main reason why the employer does not comply is because the direction is unclear on which sections of the Code have been breached. L. Olesen submitted that HSO Sheïr failed to say what the employer has to do to be in compliance with the Code.

[8] In reference to the direction, he argued as well that the company has met its obligation in that matter. According to L. Olesen the appellant operated its business in compliance with the Operating Manual and Standard Operating Procedures that are audited and approved by Transport Canada. He added that the company’s instruction and training for their employees have also been approved by Transport Canada.

Irreparable harm

[9] With regard to the second test, L. Olesen submitted that the appellant will clearly suffer irreparable harm in the event that the stay is not granted. He argued that failure to comply with the direction could result in a prosecution against the employer. In addition L. Olesen said that there is a negative effect on the company to be obliged to post the direction in the public view. He wrote that the direction’s posting “would likely result in negative effects on the Appellant’s business and its ability to retain or hire competent employees. Further, it could also have an effect on any civil litigation that may arise as a result of the occurrence of January 3, 2007.”

Balance of inconvenience

[10] L. Olesen submitted that since operating as a commercial charter, the company has utilised the Operations Manual and Standard Operating Procedures and continue to use those procedures. It is the Appellant’s position to say that they should have no adverse effect on the safety and health of its employees because the company will continue to use the same procedures.

Alternative to compliance with the direction

[11] On the fourth test that I added as a condition to grant a stay of direction, L. Olesen said that the employer intends to continue to train their employees in accordance with the procedures already approved by Transport Canada.

Respondent’s argument

[12] Patrick Mugony as an employee representative on the workplace health and safety committee said that he fully agrees with the appellant’s arguments.

Analysis and decision

[13] With regard to the first test that there is a serious issue to be tried, I believe that there is a serious issue to be tried because a direction has been issued following the hazardous occurrence investigation into the death of a pilot employed by 171817 Canada Inc. In addition the issue is about the employer who allegedly did not provide the employee with necessary supervision in respect to flight preparation and pre flight duties.

[14] Regarding the second test in respect of irreparable harm, I was not convinced by the appellant what irreparable harm the company 171817 Canada Inc. can suffer. In my opinion, the appellant’s argument was mainly about the consequences for the employer for its failure to comply with the direction, which could result into a prosecution. In addition the second point raised by the appellant in respect of posting the direction is not an argument to convince me that the company will suffer irreparable harm. A direction has to be posted to a place accessible to employees for the purpose of providing information to them. In my opinion, a direction is not for the public purpose. I am convinced that until the appeal can be heard by an Appeals Officer on its merit, the company 171817 Canada Inc. could continue to operate normally and clarification from the health and safety officer on the content of the direction could help the employer in its compliance. In conclusion on the second test, I find no irreparable harm.

[15] In respect of the third test, the balance of inconvenience; L. Olesen did not convince me that the company 171817 Canada Inc. will be in greater inconvenience than the employees whose health and safety may be at stake. I opined that in a situation like this one, the issue of compliance to the direction could have been avoided if the employer had contacted HSO Sheïr for clarification, which was not done by the employer. I find that the inconvenience for employees is greater in a situation of possible lack of supervision in regard to flight preparation and pre flight duties.

[16] As for the fourth test, L. Olesen did not submit an alternative temporary solution to further protect the employees until the appeal can be heard by an Appeals Officer and a decision rendered. In my opinion, in its submissions, the appellant did not make any reference to their obligations under the Code to protect the health and safety of employees. In fact, the employer’s position is to maintain its current safety flight procedures that have been approved by Transport Canada. However, I point out that those safety flight procedures are not subjected to the Code.

[17] Therefore, for the reasons stated above, I am not granting the stay of the direction. The employer is to make every reasonable effort, to comply with the direction until a decision, on the merit of the case, is rendered by an Appeals Officer. Accordingly, I will extend the date to terminate the contravention and to ensure that the contravention does not continue or reoccur to December 27, 2007, at the latest.

[18] You will have to inform in writing the health and safety officer no later than December 28, 2007 of the measures taken to comply with the direction originally issued on November 21, 2007. As well a copy of the measures taken has to be sent to the workplace health and safety committee.

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Decision No.: CAO-07-044 (S)

Appellant: 171817 Canada Inc. operating as Artic Sunwest Charter

Respondent: Patrick Mugony, Employee member on the workplace health and safety committee

Provisions: Canada Labour Code, Part II: 145(1)

Keywords : Stay request, supervision, flight preparation, pre flight duties

Summary:

On November 21, 2007 health and safety officer René Sheïr issues a direction to 171817 Canada Inc., a company operating as Artic Sunwest Charter, stating that the employer did not provide the employee with necessary supervision pertaining to flight preparation and pre flight duties. The company 171817 Canada Inc. submitted oral arguments during a teleconference by stating that the employer is not in a position to comply with the direction because the direction is unclear, vague and imprecise. The company 171817 Canada Inc. failed to meet all four test outlined by the Appeals Officer. Therefore no stay was granted.