Archived - Decision: 08-024-I Canada Labour Code Part II Occupational Health and Safety

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Decision on an objection by the Maritime Employers Association to the admissibility of a request by Quebec Port Terminals Inc. to add a party to the appeal, heard by Appeals Officer Katia Néron at Trois Rivières, Quebec on July 8, 2008.

For the Maritime Employers Association
Robert Monette, Ogilvy Renaud

For Quebec Port Terminals Inc.
Pierre Jolin, McCarthy Tétrault

For the Syndicat des débardeurs de Trois-Rivières
Danny Venditti, Trudel, Nadeau, Attorneys

[1] On December 12, 2007, Denis Carron, on behalf of Quebec Port Terminals Inc. (QPT), appealed under subsection 146(1) of Part II of the Canada LabourCode (the Code) from two directions issued to QPT on December 5, 2007 by Health and Safety Officer (HSO) Claude Léger.

[2] On January 30, 2008, Pierre Jolin, on behalf of QPT, requested that I make the Maritime Employers Association (MEA) a party to this case. Alleging that one question to be decided in this case is whether the above mentioned directions should have applied to the MEA and not QPT in their entirely or at least in part, Mr. Jolin submitted that the debate in this case cannot proceed without the MEA.

[3] On March 14, 2008, in reply to a written request made by the Tribunal's Case Management Officer on March 5, 2008, Stéphane Saucier, the MEA's Occupational Heath and Safety Manager, stated that the MEA was not seeking to be made a party to this case.

[4] On March 28, 2008, Mr. Jolin reiterated his request that the MEA be considered an interested party in this case, arguing that its presence is essential to any possible debate.

[5] On July 8, 2008, at the start of the hearing held to deal solely with this question, Robert Monette for the MEA made a preliminary objection, arguing that the request to make the MEA a party to the proceeding is inadmissible in law and in fact. I must decide this question before determining whether I will make the MEA a party to the case.

Facts

[6] On December 3, 2007, Steve Richard, a longshoreman and member of the Syndicat des débardeurs de Trois Rivières, Canadian Union of Public Employees (CUPE), Local 1375, was assigned to pier B1 at the Bécancour marine terminal, a work place operated by QPT, as a linesman for unmooring the M/V Sichem New York. When performing that manoeuvre, S. Richard was hit by a mooring line that severed one of his legs below the knee and injured his other leg.

[7] On December 4, 2007, HSO Léger went to the scene of the accident to investigate. He was told that the longshoremen in the same union as S. Richard were refusing to perform mooring manoeuvres because of the serious accident that had occurred the day before. Jean Poliquin, who managed the work place, also told him that non unionized employees of QPT could perform ship mooring and unmooring operations.

[8] HSO Léger's report dated February 18, 2008, which sets out the reasons for the directions he issued on December 5, 2007, reads in part as follows:

[TRANSLATION]

Steve Richard is a longshoreman, and his name is on a list of longshoremen who can be assigned to moor and unmoor ships at the Bécancour marine terminal. That list was provided to QPT by Jean Pierre Langlois, Senior Labour Relations Advisor, Maritime Employers Association (MEA), on July 10, 2007.

. . . At the Port of Trois Rivières Bécancour, as at the Port of Montréal, a union (Local 1375) has been certified for all work connected with longshoring operations for ships in the region. The Maritime Employers Association (MEA) is also the association that represents employers engaged in such activities in the region.

However, during my conversation with Jean Poliquin, he told me that QPT employees who are not members of the Syndicat des débardeurs, CUPE, Local 1375, can perform ship mooring and unmooring operations. This was happening at the time of our investigation, since the longshoremen refused to come and do mooring work after Steve Richard's accident. Because of that statement, I did not have to immediately determine whether the longshoremen assigned to operations on December 3, 2007 were MEA or QPT employees. Rather, I had to ensure that the situation that led to a serious accident did not occur again. I therefore issued my direction to QPT, since that company is responsible for ship mooring and unmooring operations at the Port of Bécancour and those operations could be performed by its employees.

[9] The same report by HSO Léger describes the employees' working conditions at the time of his investigation as follows:

[TRANSLATION]

The employees performing mooring and unmooring operations have no specific instructions for doing that type of work.

During my conversation with Mr. Poliquin, he gave me a copy of the emergency plan dated August 2000. . . . When I asked about the implementation of those measures, he told me that some of them, such as the use of a dinghy, are not enforced and that they are not known to all the people involved. . . .

Mr. Poliquin also confirmed that the available means of communication between the ship and the linesmen . . . is oral communication if the ship is close enough and the employees performing the operations speak English. Otherwise, they communicate by gesturing to one another.

There are no means available for communicating directly with the ship's pilots and/or captain to find out their intentions or the procedures they have chosen for ship mooring and unmooring operations or emergencies.

[10] Based on the foregoing, HSO Léger issued a direction for danger to QPT on December 5, 2007 under paragraphs 145(2)(a) and (b) of the Code. In the direction, he stated that he was of the opinion that the performance of ship mooring and unmooring manoeuvres without written procedures, adequate training, adequate means of communicating with the ship and adequate emergency procedures known to all those involved constituted a danger to an employee while at work. The direction reads in part as follows:

[TRANSLATION]

On December 5, 2007, the undersigned Health and Safety Officer conducted an investigation at the work place operated by Quebec Port Terminals (QPT), an employer subject to Part II of the Canada LabourCodeand located at 355 Alphonse Deshaies Blvd., Bécancour, Quebec, sometimes known as the Port of Bécancour, QPT.

The said Health and Safety Officer considers that the performance of an activity constitutes a danger to an employee while at work, to wit:

the mooring and unmooring of ships without written procedures, adequate training, adequate means of communicating with the ship and adequate emergency procedures known to all those involved may cause serious injury or a risk of death, including by drowning.

Accordingly, you are HEREBY DIRECTED, under paragraph 145(2)(a) of Part II of the Canada LabourCode, to take measures to correct the hazard immediately.

In accordance with subsection 145(3), a notice bearing number 3496 has been affixed at the QPT office in Bécancour, and no person shall remove the notice unless authorized to do so by a health and safety officer

You are ALSO HEREBY DIRECTED, under paragraph 145(2)(b) of Part II of the Canada LabourCode, NOT to perform the activity in respect of which these directions are issued until the directions are complied with.

[11] To prevent employees from performing ship mooring and unmooring manoeuvres at the Port of Bécancour until QPT had complied with the above mentioned direction, HSO Léger issued a second direction, again to QPT, under subsection 145(2.1) of the Code. That direction reads in part as follows:

[TRANSLATION]

On December 5, 2007, the undersigned Health and Safety Officer conducted an investigation at the work place operated by Quebec Port Terminals (QPT), an employer subject to Part II of the Canada LabourCodeand located at 355 Alphonse Deshaies Blvd., Bécancour, QC, sometimes known as the Port of Bécancour.

The said Health and Safety Officer considers that the performance of an activity constitutes a danger, to wit:

From Part II:

the mooring and unmooring of ships without written procedures, adequate training, adequate means of communicating with the ship and adequate emergency procedures known to all those involved may cause serious injury or a risk of death, including by drowning.

Accordingly, you are HEREBY DIRECTED, under subsection 145(2.1) of Part II of the Canada LabourCode, to:

discontinue the activity.

Is the request to make the MEA a party to this proceeding inadmissible in fact and in law?

The MEA's arguments

[12] Referring to HSO Léger's report of February 18, 2008 and the wording of the impugned directions, Mr. Monette argued, on behalf of the MEA, that HSO Léger intentionally and specifically wanted his directions to apply to QPT, since he designated it by name as the employer, not the MEA, and the directions applied to the work place operated by QPT at the Port of Bécancour.

[13] He added that, in his opinion, the said directions were issued to the proper party, namely the party that employed the employees who could be covered by the directions and that controlled their work place and the activities they performed there. According to Mr. Monette, this is the only definition applicable to a true employer, as recognized in the case law. He further argued that the fact that certain responsibilities were delegated to the MEA through a collective agreement, including with regard to the deployment of longshoremen, did not make the MEA the longshoremen's true employer.

[14] To support these arguments, Mr. Monette referred to the following authorities:

• La Reine v. Société de Terminus Racine (Montréal), Court of Quebec, docket no. 500 73 002272 041, judgment rendered on February 16, 2007, G. Garneau, JCQ
• La Reine v. Société Terminus Racine (Montréal), Superior Court, docket no. 500 73 02272-041, judgment rendered on October 12, 2007, A. Vincent, JSC
• Maritime Employers' Association and Syndicat des débardeurs C.U.P.E. Local 375, 2006 FCA 360
• Procureur général v. Compagnie d'arrimage de Québec Ltée and Denis Dupuis, docket no. 200 72 001488 944/200 72 001487 946, judgment rendered on December 16, 1996, M. Babin, Summary Convictions Court
• Her Majesty the Queen v. Fednav Limited et al., judgment rendered on September 19, 1996, Zabel J., Ontario Court of Justice (Provincial Division)
• Location de Main d'oeuvre Excellence inc. v. Commission de la construction du Québec, 2008 QCCA 999, Quebec Court of Appeal

[15] Based on the foregoing, Mr. Monette argued that my power of inquiry under theCode- even if de novo - does not extend to considering whether, as urged by QPT in this case, HSO Léger's directions of December 5, 2007 should have applied to a person other than QPT or whether other directions should have been issued to one or more other persons under theCode.

[16] Mr. Monette also argued that an appeals officer's power under paragraph 146.2(g) of the Code to "make a party to the proceeding . . . any person who, or any group that, in the officer's opinion has substantially the same interest as one of the parties and could be affected by the decision" implies that the person or group must ask or voluntarily agree to be made a party. As well, since the word "compel" or "contraindre" is not used in this paragraph and since the MEA objects, Mr. Monette submitted that I have no authority to make the MEA a party to this case.

[17] In support of this position, he referred to Appeals Officer Douglas Malanka's decision in Correctional Service of Canada - Drumheller Institution and CO's Schellenberg and Wood, Correctional Service of Canada, employees, and Larry DeWolfe, Co Chair Work Place Occupational Health and Safety Committee, Drumheller Institution (a.k.a. Drumheller Penitentiary), for the employees, and Neil S. Campbell, Health and Safety Officer. In that case, Appeals Officer Malanka wrote the following at paragraphs 34 and 52 of his decision:

34 On a separate matter, Mr. DeWolfe complained to me on the last day of the hearing that his supervisor had informed him the previous evening that he would not receive salary or travel expenses for his participation at the hearing. Mr. Fader indicated that he was not aware of what the employer would finally do, but suggested that Mr. DeWolfe was not a party to the hearing because he was at the hearing to represent Drumheller Institution employees.

52 I interpret from subsection 146(1) and paragraph 146(2)(h) that a party includes an employee, employer or trade union that feels aggrieved by a direction. Paragraph 146(2)(g) authorizes an appeals officer to make a party to a hearing any person or group that in the officer's opinion, has substantially the same interest as one of the parties and could be affected by the decision.

[18] Mr. Monette also referred to the correspondence between QPT and the MEA after HSO Léger issued his directions on December 5, 2007.

[19] In a letter dated December 21, 2007, Jean Gaudreau from QPT denied having any responsibilities related to S. Richard's accident in the final paragraph on page 1:

[TRANSLATION]

All responsibilities related to this accident are yours, including but not limited to the work procedure, training and occupational health and safety, and the attached directions should therefore have been issued to you.

[20] In a letter dated January 22, 2008, Mr. Saucier from the MEA wrote the following in paragraphs 6 and 7 on page 4:

[TRANSLATION]

. . . it is wrong to think that the MEA will hold itself responsible for a work accident related to duties in relation to which it has no control over the activity, method or work place and which it was also not assigned to perform. If you thought, as you have in the past, that training by the MEA was desirable, I trust that you would have told us. This was not at all the case for the linesmen. Since our organization's role is not to load and unload ships but rather to engage in collective bargaining and deploy workers, it is obviously your responsibility, and it is within your discretion, to inform us of your needs.

In this context, although we are aware of all the consequences of this unfortunate event, we are in no way responsible for it, and we will vigorously defend our position if it is challenged further by you or anyone else.

[21] Relying on these documents, Mr. Monette argued that the MEA and QPT have a competing interest in this case, not the same interest. He therefore submitted that the criterion of having "substantially the same interest as one of the parties" set out in paragraph 146.2(g) of theCode, which must be used to determine whether the MEA should be made a party to the case, is not met.

[22] Moreover, if a new direction is issued to the MEA following the inquiry in this case, the MEA could not exercise the right provided for in subsection 146(1) of the Code. In Mr. Monette's opinion, this would be prejudicial to the MEA and a denial of justice.

[23] With regard to the need for the MEA to be present for the hearing of this case, Mr. Monette argued that the MEA's presence is neither essential nor necessary for QPT to make full answer and defence in this case. In support of this position, he pointed out that QPT can, among other things, ask me under paragraph 146.2(a) of the Code to summon an MEA representative as a witness and "enforce the attendance of [the representative] and compel [the representative] to give . . . evidence under oath and to produce any documents and things" that I consider necessary to decide this case.

Quebec Port Terminals Inc.'s arguments

[24] Mr. Jolin, on behalf of QPT, submitted that the role of an appeals officer under the Code is not only to advance the law. According to Mr. Jolin, the mandate of an appeals officer is above all curative in nature, since the ultimate purpose of the Code, as specified in section 122.1, is "to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies".

[25] Mr. Jolin also referred to the definition of the term "employer" in subsection 122(1) of the Code. He noted that not one but three entities are included in that definition as it applies in theCode. The definition reads as follows:

"employer" means a person who employs one or more employees and includes an employers' organization and any person who acts on behalf of an employer;

[26] Mr. Jolin also referred to the decision of de Montigny J. of the Federal Court in Maritime Employers' Association v. Syndicat des débardeurs, C.U.P.E. Local 375 and the decision of Décary J.A. of the Federal Court of Appeal in the same case. In those decisions, the Federal Court and the Federal Court of Appeal affirmed the findings made by Appeals Officer Pierre Guénette in Maritime Employers Association, namely that the MEA could be considered an employer for the purposes of the Code and could be issued a direction under the Code. Décary J.A. wrote the following, inter alia, at paragraph 6 of his judgment, agreeing with the conclusions of de Montigny J.:

[6] . . . The MEA is in a hybrid position. Given the fact that in practice it is an employer's organization for employers of longshoremen whose health and safety are at issue, its status as employer representative for the purposes of the collective agreement signed with the Syndicat des débardeurs, and the undertakings that it makes on its behalf in this agreement in health and safety matters, it cannot be excluded from the application of Part II of the Canada LabourCode.

[27] Mr. Jolin also referred to my decision in Maritime Employers Association and Syndicat des débardeurs, Canadian Union of Public Employees, Local 375. In that case, I varied a direction for danger issued to the MEA on February 18, 2005 by HSO Léger to include what I considered a contravention by the MEA in relation to its responsibility under the Code - by way of the collective agreement - to train the unionized longshoremen covered by the said direction.

[28] Mr. Jolin also submitted the collective agreement between the MEA and the longshoremen belonging to the Syndicat des débardeurs de Trois Rivières, CUPE, Local 1375.

[29] Based on that document, the wording of the impugned directions and all of the above mentioned authorities, Mr. Jolin argued that it was entirely reasonable and justified in this case - and that HSO Léger should have done this before issuing his directions on December 5, 2007 - to consider whether the person to whom the said direction or directions applied was the proper person, having regard to the circumstances in which the directions were issued and the duties imposed on an employer by the Code. In Mr. Jolin's opinion, one of those circumstances had to do with the unionized longshoremen and their training as provided for in the collective agreement.

[30] Regardless of the facts or the law that justified issuing the directions of December 5, 2007 to QPT rather than another person or group, Mr. Jolin argued, referring to the content of the directions and the circumstances in which they were issued, that a direction could very well have been issued to the MEA in this case. As I understand his argument, unless the MEA is a party to this case, another direction cannot be issued to it, if I consider such a direction appropriate. As a result, according to Mr. Jolin, all the debate concerning this case will have been in vain.

[31] In Mr. Jolin's view, the question of whether the MEA or QPT was the true employer, within the meaning of the Code, of the longshoremen in question at the time of HSO Léger's investigation is also central to this case, as is the question of what concrete responsibilities each of them had in light of the three entities making up the term "employer" as it applies in the Code.

[32] Mr. Jolin argued that, in this case, all of these questions must be examined not only to resolve them once and for all but particularly - given the purpose of theCode- to prevent an accident like the one on December 3, 2007 from occurring again.

[33] Mr. Jolin also referred to the factors considered by the Federal Courts in deciding whether to order that a person be added as a party or cease to be a party. He referred to rule 104(1) of the Federal Courts Rules, the English and French versions of which read as follows:

• 104(1) Order for joinder or relief against joinder - At any time, the Court may:
• (a) order that a person who is not a proper or necessary party shall cease to be a party; or
• (b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.

• 104(1) Ordonnance de la Cour - La Cour peut, à tout moment, ordonner :
• a) qu'une personne constituée erronément comme partie ou une partie dont la présence n'est pas nécessaire au règlement des questions en litige soit mise hors de cause;
• b) que soit constituée comme partie à l'instance toute personne qui aurait dû l'être ou dont la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour l'ordonne.

[34] Mr. Jolin also quoted the English and French versions of paragraph 146.2(g) of the Code, which read as follows:

• 146.2 For the purpose of a proceeding under subsection 146.1(1), an appeals officer may:
• (g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer's opinion, has substantially the same interest as one of the parties and could be affected by the decision.