Archived - Decision: 08-003 Canada Labour Code Part II Occupational Health and Safety

Case No.: 2007‑22

Interlocutory decision
Application for suspension: CAO‑08‑003 (I)

Maritime Employers Association
appellant

and

Longshoremen’s Union, Canadian Union of Public Employees, local 375
respondent
___________________________
January 30, 2008

Application for suspension of the present case, heard via conference call by Appeals Officer Katia Néron, Ottawa, January 30, 2008.

For the appellant
Robert Monette, Counsel, Ogilvy Renault

For the respondent
Not represented

[1] The present case is an appeal filed on August 6, 2007 by Robert Monette, counsel for the Maritime Employers Association (MEA), pursuant to subsection 146(1) of Part II of the Canada Labour Code (the Code), of the direction issued on July 9, 2007 by Health and Safety Officer (HSO) François de Champlain pursuant to subsection 145(1) of the Code.

[2] In his application, Mr. Monette alleges that the direction issued by HSO de Champlain to the MEA and indicating that, in the opinion of HSO de Champlain, the MEA is in breach of the Code because it has not established a policy health and safety committee as required by subsection 134.1(1) of the Code is unfounded in fact and in law, for the following reason.

[3] Mr. Monette has argued that, since the 300 and more longshoremen and checkers working in the port of Montréal are directly employed by the individual longshoring companies operating in the port of Montréal, and not by the MEA, the MEA is not required to establish a policy health and safety committee pursuant to subsection 134.1(1) of the Code.

[4] In the present case, Mr. Monette also applied for suspension of execution of that direction. After hearing the arguments on this point via a conference call held on August 15, 2007, Appeals Officer Richard Lafrance decided to suspend execution of the July 9, 2007 direction issued by HSO de Champlain until an Appeals Officer rendered a final decision in the present case.

[5] On November 2, 2007, Vincent Thomin, representing the Longshoremen’s Union, Canadian Union of Public Employees (CUPE), local 375, informed the Canada Appeals Office on Occupational Health and Safety in writing that the union would make no representation in the present case.

[6] On January 30, 2008, a second conference call was held in order to determine whether the present case should be suspended, given that before the Federal Court is an application for judicial review filed by the MEA in order to obtain a declaratory judgement . That application, file T‑643‑07, has to do with an official request by HSO Sylvie Gaudreau to the MEA for an assurance of voluntary compliance in establishing a policy health and safety committee pursuant to subsection 134.1(1) of the Code. That application also challenges the new direction taken by the Labour Directorate, Human Resources and Social Development Canada, of now systematically designating the applicant as the employer of longshoremen working in the port of Montréal for the purposes of the application of the Code. Following the MEA’s refusal to sign the assurance of voluntary compliance, HSO de Champlain issued the direction to the MEA on July 9, 2007.

[7] According to Mr. Monette, the purpose of the application filed by the MEA with the Federal Court is to have determined who, of the MEA and the longshoring companies operating in the port of Montréal including Logistec Stevedoring Inc., or in what circumstances the MEA or the longshoring companies, is the “employer”, within the meaning of the Code, of the longshoremen and checkers working in the port of Montréal, for the purposes of the application of the Code.

[8] Given that there is now and has been for several decades an occupational health and safety co‑ordination committee for the port of Montréal as a whole, on which sit, as active members, representatives of the various longshoring companies and representatives of the unions of longshoremen and checkers working in the port of Montréal and, as observers, representatives of the MEA; given that two parallel proceedings are being pursued in the same matter, one of which has been brought before the Federal Court—a court higher than the Canada Appeals Office—; given the potential effects of the decision by that court on the present case; and in order to avoid any inconsistency of decisions or proliferation of costs and proceedings for the parties, pursuant to paragraph 146.2(e) of the Code the Appeals Officer decides to suspend the proceedings in the present case until the Federal Court has rendered a decision on the above-noted application for judicial review filed by the MEA.

[9] However, as was indicated to Mr. Monette on January 30, 2008, the Appeals Officer asks him for notification as soon as the Federal Court decision in the above-cited case is received, so that hearing dates for the present case can be set promptly.